The EU, stung by criticism of its “democratic deficit”, tried to improve control over its unelected Commission. It hasn’t worked.
Two academics, one German and one American, have published a review of legislative procedures in the EU. Their article can be found on a website of the London School of Economics:
“Several reforms have taken place at the EU level to try and address the criticism that EU decision-making suffers from a democratic deficit.” The authors “assess one such reform: the provision of powers for the Council of the European Union and the European Parliament to veto so called ‘secondary legislation’ put forward by the European Commission. They find that the use of these veto powers has been extremely limited…”
The reforms were introduced in 2006 in an attempt to offset the widespread criticism that the EU is undemocratic. Until then the Council and Parliament did not have veto powers. Under the reforms the Council and Parliament can exercise a veto, over secondary legislation, by a qualified majority vote in the Council or an absolute majority vote in the Parliament.
“While the Commission remains the initiator of legislation, the Parliament and Council now have the right to lodge objections to its administrative acts, through so-called legislative vetoes. Under certain conditions and within set timeframes, they can now vote to override the Commission’s secondary legislation before it becomes law.”
In their study the authors found that veto powers had been used only rarely:
“Between 2006 and 2016, the Parliament vetoed only eight RPS measures and five delegated acts, which amounted to less than 0.8% of its files, while the Council issued only 14 vetoes (12 RPS and 2 delegated acts), a meagre 0.2% of all cases brought to its attention by the Commission.” (RPS = regulatory procedure with scrutiny)
They argue that the limited use of veto powers by the Council of the EU and the European Parliament does not mean that the reforms have been ineffective. The veto procedures are costly, time-consuming and complex, which is a disincentive to using them. Also there may be a reluctance on the part of the Council and Parliament to raise conflicts with the Commission, which would risk bad publicity for the Union, when each of its three main institutions wish to see the Project preserved.
Using the U.S. experience as a guide, the authors conclude that:
“These two principles of political economy — the administration’s aversion to institutional conflict, and the high costs of collective action for legislatures on often technical administrative measures — suggest that the primary effect of giving veto rights to a legislature is not the actual exercise of these rights, but rather a change in the informal negotiating dynamics between institutions.”
Alternatively, we could interpret the ‘reform’ as a fancy-dress exercise designed to counter objections to the EU’s undemocratic procedures without disrupting them in practice. The authors do not provide evidence that the “informal negotiating dynamics” have been effective in limiting the legislative powers of the Commission. Instead they argue, unconvincingly, that “the Commission will tend to anticipate the Parliament’s demands or accommodate them.”
However, they do point out that any such influence takes place “behind closed doors and off the record”, which prompts them to recommend more ambitious and critical research to discover how legislative bargaining might work in practice, and whether such informal bargaining in the legislative process enhances democratic accountability. “Or, conversely, does it make it easier for interest groups to extract concessions from the executive through lobbying legislators behind the scenes?”
A helpful comment from a firm EU supporter argues that what is needed is “the ability of the Parliament to initiate legislation when the Commission fails to do so. This is needed in particular to deal with an unwelcome development, such as a decision of the Court of Justice that has either interpreted legislative or Treaty texts inappropriately or has shown up deficiencies in the drafting of those texts. The Commission all too often drags its feet in such circumstances, not least where the Court’s decision favours the centralisation of powers (to the Commission therefore) over subsidiarity and leaving powers with the Member States.”
The comparison with the US government breaks down because there both the legislature and the administration can initiate legislation, unlike the EU.