Waking up to the European Commission's stealthy power grab

Brussels is only now waking up to the fact that the European Commission has grabbed a huge amount of power from the other EU institutions under treaty rules introduced more than two years ago

One of the biggest power grabs in the history of the European Community has just taken place – and no-one even noticed. Right under the noses of those who are supposed to maintain the checks and balances of democracy, the European Commission has taken control of decisions affecting everything from the food we eat to the medicine we give our children.

Those robbed of power have been left bewildered. Even the Brussels geeks, those who make a living from deciphering impenetrable European Union texts, are only now sobering up to the vastly changed reality. They are slowly realising that the Lisbon Treaty, in force since 2009, brought with it a seismic shift in the balance of power between the EU institutions. "National governments didn't know what they were signing," explains Daniel Gueguen, chairman of consultancy Pact and professor at the College of Europe in Bruges, Belgium. "A huge amount of power was captured by the commission. Not by the commissioners themselves, but by the bureaucracy. The master of the EU is now the basic civil servant."

The devil was in the treaty detail. The small print contained changes to the EU's decision-making machine that were so complex they were approved without due consideration. Only a tiny number of negotiators understood their true significance. "Even today, very few lobbyists know how it works," says Gueguen, who set up his consultancy to fill a gap in the market. The system he is referring to, known to many as "comitology", is so confusing it has given rise to a joke. Only three people actually understand comitology, the joke goes: one of them has gone mad, and the other two are not allowed to eat the same food or travel on the same aircraft.

To make things even more opaque, all reference to comitology has been officially erased by EU lawmakers. It is now the procedure with no name. "This is a crucial dossier," Guegen tells PublicServiceEurope.com. "The very European legal act is under threat. What it basically means is that every commission directorate-general can do what it wants". The interpretation of EU laws has been handed to the commission's desk officers. Given the power concentrated in their hands, the rights of citizens across Europe now depend on officials' whims and moods.

Explaining the Lisbon Treaty changes would require thousands of words. In its most condensed form, the European Parliament, which represents the electorate, and the European Council, which represents governments, have been sidelined by the commission, the EU executive. While big EU laws are still made by the three institutions acting together, their interpretation is now almost exclusively the right of the commission. Bureaucrats today define rules governing the quality of meat, the chemical contents of infant formula, and the energy efficiency of washing machines. Officially, they do not have a monopoly. In theory, both the council and the parliament can veto their decisions. In reality however, vetoes require majorities that are almost impossible to muster. "They might be used once a year when a subject comes up that really interests the public," says Guegen.

The current Orphacol scandal is the ideal example of the ways these powers are being abused, says Guegen. Acting under the new treaty rules, and without any explanation, unnamed commission officials have refused to authorise the use of Orphacol, a medicine used to treat a rare, life-threatening liver disease. This is despite its approval by both the European Medicines Agency and EU member states. Frustrated by the refusal, governments went to the EU's new appeals committee, and won. But still the commission is refusing approval. The case has now reached the European Court of Justice, where a decision is eagerly awaited.

The high irony of this transfer of power is that the parliament thought it was the big winner of the Lisbon Treaty. Euro MPs are only now coming to terms with having been suckered into endorsing changes that sideline them rather than move them closer to the wheel of power. "I think the people who designed these comitology rules did not go to the engine room to see how it works," said Satu Hassi, a Finnish MEP. Hassi was surprised to find that her legislation on the sulphur content of marine fuels – which she viewed as a health issue – had become the latest battleground in an inter-institutional power struggle that had nothing to do with the proposal's contents.

Member states are fighting a rearguard action in an attempt to salvage the scraps of power they have left. But many parliamentarians – especially those who have not negotiated laws recently – are still under the impression that the new rules bring benefits. Eurosceptics have been complaining for decades about the loss of sovereignty in most areas of everyday life to Brussels. While in the past their claims were based on exaggerated, sometimes apocryphal stories, the latest power grab is very real. With the Lisbon Treaty, huge amounts of sovereignty have passed from governments and parliaments to faceless bureaucrats. The real story is that no-one saw it coming, and few people, even today, realise just how fundamental the changes are.