The ‘c-word’ and the EU lobbyist

Assertive Parliament forces Brussels insiders to finetune dark art of comitology.

Any Brussels lobbyist worth an expense account knows how to shape EU legislation even after it is passed. But the European Parliament’s growing assertion of oversight powers over such tweaking is putting a higher premium on this skill, known in EU jargon as “comitology.”

No matter how much eye-rolling, confusion and derision the EU’s “c-word” inspires, it is in this final stage of the legislative process that a battle royal for influence is fought. While the European Commission uses it to tinker and EU states see it as a last-minute chance to promote their interests, Parliament is clamping down on what it fears is a way to undo the substance of legislation.

Lobbyists are caught in the middle of this complex power struggle, which often stretches their resources, technical know-how, and patience.

“There is an extreme confusion in the lobbying industry about procedures,” said Daniel Guéguen, a veteran lobbyist who now heads up PACT European Affairs, a consultancy that specializes in ushering clients though the final stages of the legislative process.

“It is so complex that there is a true legal uncertainty,” Guéguen said. “Even big trade associations are facing difficulties understanding every aspect of the process. Frankly, it is a whole new job.”

This week’s “dieselgate” vote in the European Parliament is the latest example of the legislature’s more combative approach to comitology. The Commission, with input from national governments, has made changes to legislation on emissions testing standards that had already been agreed to by the institutions. Parliament now has to agree to those comitology changes and MEPs are saying their support cannot be taken for granted.

“I think it is fair to anticipate that the Parliament will get more engaged in the scrutiny processes,” said Karl Isaksson, managing partner of lobby firm Kreab. This shift of emphasis towards the implementation phase of law-making is forcing the industry to adapt, he added.

Since 2011, Parliament has had oversight of two processes that allow the Commission to ensure the seamless application of approved legislation in EU countries: “delegated acts,” in which Parliament and the Council allow the Commission to add new rules or amend legislation to ensure that its implementation goes smoothly; and “implementing acts,” in which the Commission calls in EU member countries to fine-tune the legislation.

To stay in the game, lobbyists need to be part of the Commission’s review process and know what to expect when it comes time for Parliament to sign off on whatever changes have been made.

“I would argue that it adds another dimension to our work,” Isaksson said. “The devil is in the detail, as it always has been; but now more stakeholders realize this is a process where you can have a say, often on a very technical level, and actually influence the outcome.”

Behind the scenes, lobbyists — including business associations, NGOs and consultants — say they are baffled by a process that now requires them to lobby EU states, provide technical advice and have an unprecedented level of understanding of the implementation process.

Why now?

On paper, Parliament has had the power to scrutinize “delegated acts” and “implementing acts” since 2011, when reforms adopted by the Lisbon Treaty kicked in.

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The changes required Parliament and the Council to “delegate” to the Commission the power to make small fixes to legislation to ensure it stands up across all 28 EU countries. That gave the Commission considerable power to mold the legislation, as highlighted by a recent controversy over the implementation of EU tobacco regulations.

Both Parliament and Council can revoke that delegated power and reject the Commission’s final proposals — what MEPs refer to as the “nuclear option” — but cannot modify them.

The diesel emissions deal being considered by Parliament this week is an “implementing act” that MEPs must approve or reject. More often than not, it is EU countries that lobby MEPs at this stage of the process, rather than business interests.

Even though this new legislative system has been around for over four years, observers say Parliament has yet to flex its supervisory muscle and lobbyists have been slow to respond to the changes.

“According to my research, Parliament’s reluctance to throw its weight around over delegated acts has been about both a lack of time in which to carry out the scrutiny and — more importantly — a lack of analytical skills,” said Alberto Alemanno, a professor of EU law and risk regulation at the HEC, a top French business school. “But Parliament is now building up expertise.”

Alemanno said the newly organized European Parliamentary Research Service — similar to the U.S. Congressional Research Service — is “sensitizing MEPs to the need of bringing to the table analytical assessment of legislation.”

There’s another reason MEPs are more willing to use their oversight role. The Commission’s focus on “doing less” in terms of new regulation has lightened Parliament’s workload, giving MEPs more time to get involved in the process and their staff more time to develop skills needed to deal with highly technical issues.

“We have been forced to take a closer look,” one assistant said, asking not to be named. “But, to be honest, we are still learning.”

Technocracy rising

All sides agree that the growing prominence of delegated and implemented acts is transforming both the legislative process and the lobbying industry around it.

But there is little agreement on whether this transformation has been good or bad in terms of accountability of the legislative process and whether Parliament stands to win or lose from it.

“There is a lot of crap talked about this,” said veteran MEP Richard Corbett, a member of Parliament’s constitutional affairs committee who has written extensively on legislative reform.

“Basic EU legislation has to pass two democratic tests,” Corbett said — the first is Parliament’s initial adoption of the legislation, the second is its ability to revisit it after the Commission has put it through the comitology process.

“It’s up to the democratically-elected Parliament and the Council, representing democratically-elected governments, to block the [delegated and implementing acts] if they don’t like them,” Corbett said. “So, there are safeguards there.”

Corbett bristles at the suggestion that the Commission lacks the democratic legitimacy to modify legislation.

“Commissioners are not bureaucrats — they are politicians,” Corbett said. “They are appointed like a minister in a national government…. It’s a political executive and we have ways and means of putting pressure on them.”

Yet the way in which implemented acts were used in October by national governments to weaken EU emissions standards for the car industry has raised the suspicion that the process — even with parliamentary oversight — is being used to water down legislation that has already been signed off by Parliament.

EU countries moved to weaken emissions standards weeks after revelations car manufacturer Volkswagen had used software devices to cheat on emissions tests — a response that raised concerns in Parliament.

In particular, the use of so-called “national experts” in the implementing acts — as occurred in the case of diesel emissions — has focused public attention on concerns that the process could be hijacked by countries seeking to push their interests.

This perception has renewed pressure on MEPs to redouble their efforts to scrutinize the implementing acts. It has also boosted efforts to make the process more transparent.

By the end of this year, the Commission is expected to publish a public register of all the national experts it calls on for delegated acts and technical committees — a move that would please lobbyists, who fear their efforts may be undermined when national interests are brought to bear behind closed doors.

The Commission’s “Better Regulation” reforms will also have an impact on the comitology process. They include a new procedure that would throw any changes made in the implementation of legislation open to public scrutiny.

These reforms would also slow the process down, something many observers say would defeat the purpose of comitology, which is supposed to be about last-minute tweaks to legislation to help with the implementation, not a chance to re-open a legislative Pandora’s box.

“The [Better Regulation] reforms are a good idea at first sight, but the whole point of implementing acts is that they be adopted quickly,” said Guéguen. “This ‘stakeholders’ step is adding another layer of bureaucracy.”