The institutional alteration of the right of initative of the European
Commission

Spyros A. Pappas, Attorney at Law, Senior Adviser EPPA (European Public
Policy Advisers), Former Director General at the European Commission.

1. De lege lata: The Commission's monopoly.

One of the basic rights/prerogatives of the European Commission is the
right of initiative (CJEC 26.2.1976, SADAM, case 88, 90/75, Rec.323).
This right means that the Commission not only participates in the
creation of community legislation, but that it is also the body, which
has the exclusive prerogative to initiate the legislative process. In
this way, the Commission, by evaluating the Community interest can, at
any given moment, propose new regulations and directives. It can even
withdraw its respective proposals in the case that with reason it alters
opinion or that the legislative process leads to a substantially
different direction from its original proposals. Indeed, according to
the provisions of articles 251, par.2 and 252 par.2 of the Treaty
establishing the European Communities (TEC) the Council on its own or
jointly with the European Parliament, depending on the relevant
provisions of the TEC, cannot proceed with legislative changes without a
prior proposal of the Commission. Regulations and directives, if these
are issued without the proposal of the Commission as is stipulated in
the TEC, it is possible that the Court of Justice of the European
Communities cancel them on the grounds of a breach of substantive
procedural requirement, following an appeal. Moreover, if the Council
wishes to diverge from the proposal of the Commission it can do so only
by a unanimous decision of all its members, whereas, generally, in order
for the Council to adopt acts by qualified majority the following is
required:

- 62 votes, in the cases where according to the Treaty the Council
decides on a proposal of the Commission.

- 62 votes which include the votes of at least ten members, in other
cases.

Consequently, the proposal of the Commission is not simply the formal
pre- condition for initiating the legislative process, but is rather the
substantial basis, upon which the Council supports its decision. It is
clear that, apart from the cases where the actual Treaty provides a
binding deadline, the Commission disposes the right to decide, if and
when it shall formulate a proposal. Furthermore, the Commission may
either amend its own proposal particularly by taking into account the
opinion of the European Parliament or withdraw it. This possibility
bestowed to the Commission is a broad discretionary power, which is
justified by the provisions of the Treaty that the Community interest be
safeguarded by an independent and supranational body of the EC. However,
in the framework of the institutional balance, the TEC foresees the
possibility for the Council as well as for the European Parliament to
urge or to inspire legislative proposals put subsequently forward by the
Commission. To be precise, the exercise of the right by the European
Parliament or by the Council, according to a correct interpretation of
the Treaty, cannot have as a result a modification of the right of
initiative of the Commission into one of an obligation on its part to
formulate a respective legislative proposal in accordance with the
desires of the other two bodies in question. In other words, if the
Commission does not act in conformity to the desires of the Council and
European Parliament, there does not exist the possibility to appeal
against it for failure to act. If this were not the case, the
Commission's right of initiative would be reduced into a mere formality
and the Commission's role would be described as one of formal
cooperation for institutionalising the decisions taken in advance by the
other two Institutions. Such a situation, however, conflicts with the
spirit and the letter of the Treaties, which express the wish for the
Institutions to cooperate on an equal basis. An exception to the basic
rule would require an explicit provision in the provisions of article
192b and 208 TEC. In conclusion, the Commission's right of initiative
constitutes an exclusive competence, indeed a monopoly, which ensures it
has a significant and crucial part in the formulation of community
policies and with a most political role. The significance of the
Commission's role is ensured not only by the choice of timing for
putting forward a proposal, not only by its formulation of the contents
of a given proposal which actually sets the context in which the other
two decision making bodies can act within, but also by its capacity to
intervene in and influence the co-decision and cooperation procedures
according to their respective and various national and institutional
balances. The various actions which the Commission exercises in the
political negotiations of the decision-making processes amount to it
having a role which can be defined as one of Primus inter pares. Can
such a role therefore continue to be justified? Does it correspond to
the new reality?

2. The waning of the Commission's right of initiative.

It is a fact that the significant role of the European Commission in the
European enterprise has been decisive. It is with good reason that the
Commission is known as the motor of the European Community, something,
which is owed above all else to its right of initiative. Somebody had to
pave the community road. For every type of new government organisation
it is necessary to innovate. It was therefore most appropriate that the
Commission was accorded such a role, during the period in which the
dilemma "national versus supranational state" was felt acutely. For this
reason there were periods characterised by intense action by the
Commission and others characterised by a more low key approach,
according to the prevalent political mood or to the vision of its
respective Presidents over the years. The more mooted period of the
1970s was succeeded by the euro-euphoric Delors and Santer Commissions,
which in turn have been followed by the regressive Prodi Commission. Is
it a pattern of alternating phases of history being repeated in the
course towards European completion or it is an evolution to a next
phase, always with the same objective, but via a different direction? A
deeper review of the fact cannot but lead to the conclusion that in
reality the rhythm of the course has not just been a result of certain
successive, coincidental or not, exchanges of attitudes, but rather,
since 1970 there has been a corrosion of the Commission's right of
initiative and of its negotiating power. It is true that at the initial
phase of the history of the European Communities, the Commission not
only had the necessary legal basis in order to assume the primary role:
Rather the Commission as the par excellence Community institution was
able to flourish in the climate of Euro-optimism which characterised the
period and which prevailed significantly in the key Member States
following the tragic experience of the Second World War which had torn
the continent apart. The Commission moreover had the appropriate
technical infrastructure and know-how. On the other hand in the Member
States, the concept of the nation state reigned, the dominant role of
national policies continued to prevail over Community policies and
notably national administrations had not yet developed the necessary
familiarity with the complex procedures which characterised negotiations
and decision making in the Community. With the passing of time the
necessary Community know-how was obtained and it became well understood
that Community policies were not external to national policies but
rather constituted an integral part of policy at the national level. The
result was that the lack of national interest and action was replaced by
a vying on the part of the Member States to ensure the prevalence of
their respective national interests prior to the formulation of the
final Community interest by means of diplomatic but at the same time
unrelenting negotiating rivalry.

From the free arena in which the Commission first operated in, it found
itself increasingly in a new situation in which the European Parliament
and the Council began to assert their institutional positions and the
Member States for their part claimed the primary role in decision
-making. Accordingly the Committee of Permanent Representatives obtained
an ever increasing politically significant role becoming the factory for
the processing of Community policies This resulted in the bureaucracy
becoming ever more politicised and politics becoming ever more
bureaucratised captive to technocracy and to the balances formulated for
the big and small bargaining in the Community corridors.

Faced with this new situation the European Commission in its efforts to
pass convincingly its proposals introduced and added a new informal but
terribly important phase to the already over burdened Community
procedures - that of the pre-negotiations. For this purpose the
Commission uses in addition to the variously coloured papers- be they
green or white -the so called Communications and the informal meetings
which serve to allow the Commission to gauge the tendencies on a
particular issue in the European Parliament and the Council. In
addition, for this phase of the decision-making process the Commission
issues working documents which are discussed by the Committee of
Permanent Representatives and its sub-committees, as well as by the
various responsible Committees of the European Parliament. The result is
on the one hand a delay in the progress of work and on the other the
receding of the Community interest, which previously constituted the
axis around which the negotiations took place. Negotiations are
characterised by the pursuit to attain at whatever cost a compromise
which in turn relates to another sought after balance in another field
of Community policy making. The philosophy of give and take, instead of
a rallying behind a principle which objectively represents the Community
interest, in effect, weakens the capacity of the Commission to lead the
negotiations where as once it had been in the driving seat, undermines
the potency of its interventions and renders it hostage to various ever
changing alliances.

The recent past is filled with examples to illustrate this situation.
The Council decision of September 1977 regarding the future action of
the Community in the field of cultural policy constitutes an example.
With this decision the Council on the basis of Article 208 (ex 152) of
the EC Treaty <=Calls on the Commission to undertake a study regarding
the possibility to establish a guiding, consistent and transparent
approach for the Community` s action in the cultural field in order to
implement Article 128 of the EC Treaty. The Commission is furthermore
called upon to, until the 1st May 1998 at the latest to submit proposals
regarding the future of European cultural action including the
establishment of a single means for programming and financing with the
objective to implement Article 128 given that the audio visual sector
already has at its disposal its own means and taking into account the
above thoughts of the under signed.<= In any case, the thoughts mentioned
make explicit reference to the conclusions of the Council and of the
Council of Ministers of Culture meeting of the 12th November 1992 on the
question of the guiding principles of the Community` s cultural action
“according to which...”. Moreover, amongst other recommendations
included in the preamble, it is considered advisable for the Commission
to ask, in whatever way it deems appropriate, the Member States for
their views regarding cooperation in the EU in the field of culture.

It should be noted that the Commission proceeded to ask the Member
States -as it was its obligation in a field such as culture-, the
Council and the European Parliament, both formally and informally, for
their views, by means of organising the 1st European Forum on Culture,
other European meetings with Ministers of Culture, as well as with a
series of announcements in the committees of the European Parliament.
The Commission also respected to the letter the binding deadline set by
the Council. The most remarkable fact however is that initially the
Commission had formulated the correct view, in conformity with the
original views of the other two institutions, to focus the Community
support only for large programmes with high visibility - in keeping with
the principle of subsidiarity and with the administrative and management
capabilities of the Commission. However, when the moment of truth
arrived and it was realised that this would not allow the requests of
micro -clientalism to be satisfied, it was belatedly discovered that
there was in fact an imperative need for the maintenance and
strengthening of the particular cultural characteristics which could
only be attained by the small programmes. Thus the emphasis was given to
allowing for Community subsidies to be splintered into many different
Community actions. It was only thanks to the patriotism of certain
Community technocrats and of the then Commissioner Marcelino Oreja that
one part of the original proposal justifying Community intervention was
saved. For the rest the Commission was dancing to the tune either of the
Council or of the European Parliament. The worst instance, although,
occurred with the issue of the European cultural capitals. The original
proposal of the Commission for a Community programme, stemming from an
intergovernmental initiative approved in 1985 following a proposal of
the then Minister for Culture Melina Merkouri, was breached in such a
way by the Council that the meritocratic system proposed on which the
cultural capitals were to be chosen, was replaced by the Council
approving itself a list of cultural cities by country up till 2019, thus
removing the European dimension of the programme and fundamentally
limiting the role of the European Commission in the process to the
executive accountant. A reaction to this state of affairs by the
European Parliament was rather easily contained due to the pressure
applied on individual members by the cities which featured on the list
and in view of the major issue of the de-blocking by the Council of the
budget for the cultural framework programme in question. The Commission
however did not withdraw its proposal.

Likewise for other major subjects such as for the Agenda 2000. Instead
of submitting its proposal exclusively on the basis of its evaluation of
the Community interest, it worked out various scenarios in an attempt to
pre-emt its eventual rejection by the Council. Indeed the document in
question after various drafts was actually to the satisfaction of the
Member States before its being formally submitted. This strategy could
in part be regarded as a success for the Commission since amongst other
things it opened the road for the enlargement process. On the other
hand, however, it illustrates a reality sealed recently joyfully,
although in disregard of the TEC, with the solemn condemnation of the
principle of collegiality between Commissioners, indeed by themselves,
since they signed a declaration accepting a priori their resignation,
following the recommendation of President Prodi who had succumbed to
the pressures of the European Parliament.

Already the large number of Commissioners rendered difficult the
handling of major issues. The resorting to a vote in the College of
Commissioners had become more frequent and was replacing the traditional
custom of seeking to find a consensus. The same situation was occurring
in the departments. The increase in the number of Community policies,
and therefore of service, renders their coordination if not impossible,
at least very difficult. The lack of collegiality which became more
marked following the decision to separate the Commissioners, whereas
previously up until the Santer Commission they had shared the same
premises, and the lack of interdepartmental coordination have together,
if not taken away, at least weakened the capacity of the Commission to
identify and define the Community interest. Rather each Commissioner and
each Director -General is confined to their particular dossier. For all
these reasons it has already become apparent to many that the Commission
was increasingly unable to fulfil its institutional role.

3. Conclusions: On the eve of the new intergovernmental conference.

From the above it has become apparent that the right of initiative is
not being exercised by the Commission in the manner foreseen in the EC
Treaty and that in practice this right has come to the Institutions
which have the decision-making powers. The so-called institutional
balance exists only in theory. In reality it never really did and does
not exist. Formerly the balance weighed towards the Commission whereas
from the Prodi Commission onwards it is leaning towards the Council and
in part towards the European Parliament. This swing should not provoke
neither surprise nor concern. Rather it is indicative of the democratic
normalisation of a system of union of States, which if it had had a
different beginning would have evolved differentely. The time has come
for the reins to be handed over to those who are legitimized by the
States. The Council possesses all the necessary prerequisites in order
to prove to be the veritable workshop of community business and not, as
often it is conceived, of intergovernmental confrontation. This is an
institutional development which was sanctioned by the European
Parliament with its inexcusable adoption of the motion of censure
against the Santer Commission and which has been consolidated by the
de-politicisation of the current Commission. In other words, what we
have today is an alteration of the founding treaties, something, which
is not in itself a negative development. On the contrary, via the
parliamentary control of governments, at the national level, exercised
now also in regard of community initiatives, it will be possible to have
a greater degree of democratic control. This has the potential to bring
the citizen closer to Brussels thus bridging their sense of alienation.
The Commission for its part can now regain its authority by focusing on
its other significant role- that of guardian of the Treaties as well as
the role of co-ordinating national administrations in the implementation
of Community policies. Politics for the politicians with transparency
and accountability, the implementation of policies for technocrats.
Following the terrorist attack of the 11th September this distinction is
resuming its significance. From now on, technocratic know-how will not
be able to take precedence over politics. What merits questioning
however is the fact that, although there is agreement regarding the need
for better administration and management from the Commission and for a
more homogeneous implementation of Community policies, no one has
queried whether the Commission should continue to have the exclusive
right of legislative initiative. It is noted that this right is not to
be found in any other state organisation, at least not to the same
degree. In the Communication addressed for the Commission on
Administrative reform-Strategic questions, the competent vice -president
of the Commission, Neil Kinnock notes that an improvement in the
performance of the Commission in its administrative task constitutes an
absolute priority and that over the years the Commission has had to
increasingly develop its executive powers. At the same time the
Commissioner makes it clear, in a dogmatic manner, while reaffirming the
turn for managerial tasks, that the Commission should continue to
exercise its right of initiative. This persistence is particularly
interesting and is explained both by the prestige and power, which
accompany the right of initiative, and to the future perspective of a
European government. It knows only too well however the contradiction
between the legislative and the administrative and executive powers as
parallel and equal priorities. Moreover, account should be taken of the
point that the exercise of the right of initiative exceeds the relative
powers of the national governments who are limited to a proposal,
without the negotiating intervention powers which the Commission
possesses and which heightens the confusion of powers at the Community
level, despite the principle of rule of law which is often recalled in
Community texts. It errs also regarding the view that exercising the
right of initiative brings the Union closer to its citizens. The
questioning of a reformed role of the European Commission in conformity
with the new given commenced for the first time by President Santer in
the framework of the dialogue for a "Europe for tomorrow". The principle
of less action for better action constituted in part the basis for that
discussion. Indeed in 1990 the Commission had proposed 60 legislative
proposals whereas the number was down to less than 10 in 1997. The
discussion was a good start, which however was interrupted before final
conclusions could be reached. The responsibility to continue the
discussion lies now with the European Convention for the Future of
Europe. Indeed it constitutes a unique opportunity for clarifying a lot
of questions and for reviewing who does what both between the national
and community levels (principle of subsidiarity) as well as between the
European institutions. The "good life" of the European institutions
depends on the answers, which will be found. The question of the right
of initiative will constitute a particularly significant issue. Maybe as
a first step the arrangements of the third pillar and the procedures for
reviewing the Treaties in accordance with article 48 of the Treaty on
the European Union, both of which provide for a sharing of the right of
initiative between the Member States and the Commission could be
considered. Certainly, there exists a significant qualitative difference
between the review of the Treaties and their implementation. In the
first instance it is the responsibility of the constitutional organs,
which emerge, whereas in the second instance it is the responsibility
mainly of the institutionalised organs. What will have to be clarified
is the role, which will be assumed by the Commission in the formulation
of policies by the Council and the European Parliament in order for it
to ensure the proper functioning and development of the Common market.
For this to be attained, it is certain that considerable enthusiasm will
be required and as the President of the European Convention noted in his
introductory speech, "inspiration from God."