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Transparency in the EU: Participatory democracy in danger

Is still transparency a true fundamental right in the EU?

Are the myriad of public consultations under the ‘have your say’ method something more than a trap to get distracted? 

Comitology laws

For easy understanding, the so-called comitology is a particular decision-making procedure in the EU that consists of granting the European Commission powers to approve laws.

As in the case of the Count of Romanones, Spanish ruler of the early twentieth century, who told the deputies: “Make the laws, I will make the regulations”, the Commission has become -against the legitimate lawmakers (Parliament and Council)- the key legislator of the EU and the countries that make it up since between 50 and 80% of national laws come from the EU.

Comitology takes two forms: delegated acts and implementing acts, which constitute secondary legislation or, confusedly, non-legislative acts. While both result from basic legislation (a Regulation or Directive providing for the Commission to adopt them), delegated acts supplement or amend secondary aspects of the basic legislation and should not be submitted to a committee but to a Group of National Experts. Implementing acts, on the other hand, help to standardize the implementation of the basic law and must be subject to examination by a committee.

To get an idea, these comitology laws cover all sectors (agriculture/fisheries, industrial and services) regulating issues such as health, environmental protection, the fight against climate change, the circular economy, consumer protection or trade. They represent 9 out of 10 laws that the EU approves annually, reaching 1,500 in the case of implementing acts.

The European Green Deal or green agenda approved at the end of 2019 and fueled after the pandemic with NextGenerationEU funds and national recovery plans, is the paradigm of comitology: from each of the dozens of EU laws derived from the Green Deal hang a large number of comitology laws that – contrary to what it may seem – they end up regulating the most controversial and substantial aspects as we have seen in recent examples of approval of chemical products (the herbicide glyphosate), the consideration of nuclear energy as a sustainable activity, the regulation of hydrogen as a future source of energy or the waste management in the circular economy.

Precisely, the current discussion under Swedish Presidency on the future regulation on eco-design of sustainable products is a very striking example today. Issues such as determining who decides on product groups and requirements, determining their environmental impact, sustainability, reuse, reparability, recyclability or how to avid destruction of non-used consumer goods to reduce waste, are becoming a battle between the Commission – because of the numerous comitology laws provided for in the legislative proposal – and the Council -whose power is limited to forming the expert groups and committees that assist the Commission but do not decide-.

Faceless civil servants

The new ‘who’s who’ EU Directory, freshly released, eliminates the contact references of those staff below Directors and Head of Units, thus depriving citizens from knowing who is making the decisions that will end up influencing their lives.

Firstly, comitology laws and faceless staff raise serious doubts about the democratic quality of laws that are decided in the shadows with limited control by the true legislators (in particular, the European Parliament, which sees its power undermined despite being the only institution elected by universal suffrage in the EU).

Secondly, and in more practical terms, this makes participatory democracy effective through lobbying much trickier.

The lack of transparency (names and contact references of key staff, proposal and preparatory documents, names of experts of groups and committees, minutes of meetings, etc.) hinders the work of those who, as lobbyists, seek to participate in the decision-making processes of these laws, ultimately committing the participation of the civil society we represent.

At Alonso & Asociados, we have been devoting our experience, energy and know-how of 30+ years to help companies, associations and public bodies to enlighten them about the EU decision-taking and to get the best of it by making a good use of Brussels institutions.

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