Federalist denounces 'scandalous' EU law-making

European Union law-making has become fundamentally undemocratic – and that comes from the mouth not of a typical Eurosceptic but from one of the bloc's biggest supporters

When even the pro-Europeans admit that the Eurosceptics have a point, you know something is going very wrong. Daniel Guéguen, a lobbyist and lecturer at the College of Europe – the preparatory school for the Brussels civil service – believes the European Union has become fundamentally anti-democratic. "I am a federalist but on some issues the Eurosceptics are right," he tells PublicServiceEurope.com. "The system we have now is the worst you can possibly imagine. It is a culmination of all faults. There is no advantage to the new system. I am extremely angry. It is a scandal".

Guéguen is referring to the EU decision-making machine brought into force by the Lisbon Treaty. It is a dark world of committees and power struggles that takes place almost entirely out of the public eye. Formerly known by the dreaded term comitology, now better known as secondary legislation, its masters – European Commission officials – have been given the freedom to make key decisions acting alone and without any democratic oversight.

When Eurosceptics say that the EU has been hijacked by an unaccountable civil service, by the commission desk officers, they are correct, says Guéguen. The system now in force is understood fully by only around 50 people outside the Brussels executive, he estimates. In the European Parliament there are "fewer than 10 people" who know what is going on. Even the national governments, who all approved the Lisbon Treaty, are only now beginning to wake up to the juggernaut that has run them over.

"In lots of cases there is not even a committee," Guéguen explains. He is referring to so-called delegated acts, legislation that delegates powers to the commission to take follow-up decisions without restraint. These decisions just pop up out of nowhere, says Guéguen. "You are never sure you will be informed. A delegated act can simply pop up and it can run against your interests."

Who conspired to invent this infernal system? The lawyers, he says. "Some people in the legal service believe that the goal is more important than the legal order. They are using legal window-dressing. This system is unsustainable and does not respect the spirit of EU law-making." When asked for examples of decisions of taken under secondary legislation, Guéguen says "everything". We are talking about agricultural subsidies, budgets, financial services, research.

"As a company, if you do not understand what is happening you are paralysed. Companies say to me 'who is my next interlocutor'?" Governments are just as likely to be manipulated, Guéguen says. "One day a member state will get trapped. A government will not be informed about a key regulation. You can imagine the damage."

The system is all the more insidious because the commission's power is disguised behind so-called checks and balances. The Council of Ministers – the institution representing national governments – and the parliament can in theory veto a commission decision. But the majorities required for a veto are so difficult to achieve that they are in reality impossible to muster. "In the parliament, an absolute majority of members is required," says Guéguen. "This might be possible in cases that trigger emotional responses, maybe two or three time a year. But the result of the time, forget it."

To counter this moral decay, Guéguen has started to collect signatures for a "manifesto" proposing 10 measures for "streamlining" delegated acts and other types of edict called implementing acts. "We must get rid of current lax and unclear practices," the manifesto reads. Details of all meetings, including agendas and minutes, must be made public, as should lists of all committee members.

"There is no justification for the standard argument for non-communication that committee members rotate from one meeting to another," Guéguen says. Transparency should also apply to decisions made without a committee, the manifesto states. The European Petroleum Industry, the Slovenian Business and Research Association and France's Centre Europeen de Droit et d'Economie are among the first signatories.

European heads of state and government pledged somewhat ironically to simplify procedures and increase transparency back in 2001. While the web streaming of a number of council meetings could be called progress, the system of secondary legislation introduced by the Lisbon Treaty is a major step backwards. Some might suggest the whole system should be scrapped, though this would involve a treaty re-write. Given the mischief that EU lawyers conspired to create last time, they can surely not be trusted again.