IMPROVING EUROPEAN GOVERNANCE MUST BE HIGH ON THE POLITICAL AGENDA

It is necessary to bring EU governance forward as a response to the citizens’ quest for legitimacy through enhanced democratization in the decision-making mechanisms and as a tool that would increase the leverage and competitiveness of the EU to have an efficient way of functioning. In that respect, the legitimacy and the representative power of the EU and its institutions need to be put under scrutiny, as powerful and at the same time efficient decision making mechanisms are necessary for the EU. This important topic was not raised by President Juncker in his ‘State of the Union’ address but it really should guide the discussions to be held in  Bratislava on 14 September.

Unfortunately European integration has become an élite affair. Governments are pushing a reluctant public to accept their decisions both on Europe and in Europe. European governance is a highly political affair. Even when governments prefer to work together in order to take advantage of the superior problem-solving capacity of common action, the contents of this common action is conflict-ridden. Similar problems in the individual Member State are not necessarily common problems. And above all, problem-solving strategies are not self-explanatory. They have to meet quite diverse normative and factual preferences. What representatives of EU institutions consider to be an adequate policy may not necessarily match the expectations of the EU citizens.

Hard choices have to taken, and they have to be taken on political grounds. On most issues, policy-making is a matter of choice. Decision-makers have to choose between competing preferences and decide in favour or against well-founded interests and long-cherished ideals. No one objects to "better legislation" - but the choice is not between the bad and the better, but between alternative options. There are different preferences, different criteria of evaluation and, last but not least, distributive and re-distributive effects that have to be taken into account.

When Member States are not willing to "speed up legislation" and continue to amend detailed procedures when transposing directives into national law, they do not do it out of idiosyncratic inclinations. On the contrary, they respond to, or anticipate, the problems that their citizens are facing, which will finally induce them not to comply. Politics is not a truth-finding exercise - it does not look for the "one best solution" which could be provided by expert knowledge. Expert consultation very often just reproduces the conventional wisdom held by an epistemic community, and is hardly ever free of a political bias.

Governments may, indeed, be captured by partial interest groups, but the Commission itself is faced with `capture'. Partial, but powerful, interests aim at including the Commission in a `winning' coalition of advocacy. What are the controlling mechanisms at national and European level to avoid such `capture'? At national level, governments have to run for re-election and convince the electorate that they have not traded the common interest for the privileges of a small group. Such controlling mechanisms are absent at EU level.

European governance is the exercise of power. Power is exercised in a different way and sometimes with different means than in Member States, but it is still taking arbitrary decisions that affect people’s life. Thus, it has to be legitimated. Legitimacy is needed both for normative and for functional reasons because illegitimate rule breeds political instability.

When talking about the principles of good governance, the concern should not just be for the smooth functioning of the system, but also for the normative quality of European governance. Legitimacy is, or at least should be, at the core of any deliberations about the future of European governance.

Openness in terms of improved transparency is a prerequisite for public accountability, and openness in terms of better access to decision-making bodies is a pre-condition for political participation. Participation and accountability are two core elements in any democratic system. There needs to be a clear commitment to the two essential elements that turn participation into a democratic device.(1) equality: i.e., the equal chance to participate (or at least institutionalised mechanisms for a representative selection of participants), and  (2) reliability: i.e., a commitment to "binding agreements" on the part of decision-makers; without such a commitment "participation" is just an opportunity to raise a voice without of promise of it being heard.

It is not sufficient to have decision-makers simply `explain and take responsibility' for what they do . In a democratic system, accountability is synonymous with institutionalised mechanisms to sanction unwanted behaviour.

Indeed, the European Union's `legitimacy today depends on involvement and participation' - output legitimacy has to be supplemented by input legitimacy. But involvement, participation and accountability have to be organised in such a way that they meet the criteria of democratic standards. Democratic standards  should not be lowered just because it is difficult to meet them in the European Union.

The Need for Strengthening Subsidiarity and/or Improve Focus (Source: Clingendael Netherlands Institute of International Relations/Centre for European Policy Studies)

European Level

• Introduce an annual subsidiarity debate in the General Affairs Council. The Council could hold discussions on the five-year working programme of the Commission, with annual follow-ups to discuss the working programme and inform the Commission on policy priorities in the Council.
• Introduce a discontinuity principle, where a new College of Commissioners should start with new proposals. It should be noted here that the Commission’s rules of procedure state that the Commission performs a self-check on the necessity of floating proposals.
• Appoint a number of ‘core’ Commissioners with initiative powers, instead of 28 Commissioners with law-making powers in 28 policy portfolios.
• Give one of the Commissioners a subsidiarity portfolio.
• Include no unnecessary non-binding communications and recommendations from the Commission in areas where the treaties do not give the EU specific competences.
• Negotiate a political agreement between the Council and the Commission (possibly involving the European Parliament as well), determining certain domains or certain issues where the European institutions will refrain from further initiatives. A closely related alternative is the idea of a moratorium, agreeing not to present new proposals in a specific area for a certain period.
• Maximise Member States’ involvement in all legislative procedures, including the process of implementing acts, delegating acts, or implementation and elaboration by EU agencies.
• Establish a separate subsidiarity court to monitor EU legislation.
• Encourage a proactive approach by EU and national legislators to prevent unintended interpretation by the European Court of Justice.
• Action taken by the EU should always be motivated by citing a clear legal basis in the Treaties. This basis should be concisely formulated and clearly related to the proposed action.
• EU legislation should be less detailed and invasive, but take a more generic and goal-oriented approach. There should be no micro-management of the EU.
• Create the possibility to pause the legislative process in cases of major changes/amendments in the legislation, to give all involved a chance to (re)formulate a position.
• Prevent the EU from intervening in an unjustified way, while preserving the institutional equilibrium.
• Ensure that the European Parliament, taking advantage of its role in selection the Commission president, does not dictate the agenda of the Commission.
• Ensure better cooperation between the Commission and Member States on the REFIT programme.
• Undertake more generic work on impact assessments, with explicit information on implementation costs and other costs, both at EU and national levels, and more focus on the fulfillment of the subsidiarity principle in impact assessments.
• Undertake impact assessments by the Council and the European Parliament at the start, and during the legislative procedure after significant amendments.
• Pay more attention to the subsidiarity test in the impact assessments by the Council and the European Parliament at the start of the legislative procedure.
• Pay additional attention in the impact assessments to fostering a better balance between local circumstances in the Member States and the common European goals.
• Reduce administrative and regulatory burden for companies, first of all for small and medium-sized enterprises (SMEs). Introduce checks for whether EU legislation truly improves the internal market and competition.
• Make better use of the roadmaps and consultation practice of the Commission, before a legislative proposal is published, to voice concerns about subsidiarity, proportionality or burdensome regulation.
• Introduce ex post subsidiarity control on existing EU legislation to demonstrate whether subsidiarity was respected and to justify the necessity of EU legislative acts on a case-by-case basis. Both Member States and the EU institutions should be involved.

National Level

• Introduce the ‘right’ for national parliaments to request clarification from Commissioners regarding a proposal, communication or reaction to a reasoned opinion. Ensure better cooperation between national parliaments and the European Commission, especially in the yellow card procedure.
• Ask the European Commission to respond to a reasoned opinion from national parliaments in the yellow card procedure within eight weeks of submission.
• Increase the effectiveness of the yellow card procedure, by extending the grounds for reasoned opinions, and allowing proportionality arguments next to subsidiary objections.
• Extend the time-frame in the yellow card procedure from one-third to one-quarter of all parliamentary chambers of the Member States.
• Follow the example of the Danish scrutiny model and introduce a mandating system for national parliampents in ex ante control making national parliament policy-shapers in the EU legislative procedure.
• Organise an annual subsidiarity debate in national parliaments to consider current and proposed EU legislation.
• Request all Member States to make a list on subsidiarity concerns and perceived over-burdensome regulations. The Commission should collect all the input and process it.
• Mobilise and educate national parliaments to improve their involvement in existing EU procedures.
• Increase investment in the monitoring of impact assessments at the national level.
• Encourage better cooperation and coordination between national parliaments and governments. Governments could better explain their position in the Council, so as to trigger a reaction from the national parliament.
• Exchange best practices on the approach to subsidiarity and the use of the subsidiarity check by national parliaments. COSAC could be the right platform for such an information exchange.
• Introduce an informal 'red card' for national parliaments, by proposing the political agreement that the Commission will use its discretion to withdraw legislation if one-third of national parliaments raise subsidiarity objections.
• Introduce a 'late card', giving national parliaments the opportunity to voice their concerns at a later stage of the ordinary legislative procedure.
• Introduce a 'green card' for national parliaments, which would give them the option to table a joint legislative proposal if a sufficient number of Member States' parliaments support it.