Non-Majoritarian Instruments and Institutions: Dissensus and Democracy in Europe

Chapter 1

Non-Majoritarian Instruments and Institutions: Dissensus and Democracy in Europe edited by Chiara Armeni and Christina Eckes

Evaluating the Role of the European Commission as a Non-Majoritarian Actor: EU Climate Policy Between Expert Governance and Democratic Aspirations

ABSTRACT: The European Commission can be seen as a non-majoritarian executive actor defined by institutionalised expertise. One of the most tangible expressions of Commission's expertise is the practice of policy evaluation, especially in the form of conducting impact assessments accompanying legislative or treaty-making proposals. Impact assessments can be connected to Commission's commitment to evidence-based policymaking and contribute to its framing and agenda-setting powers in the EU legislative process. Against this backdrop, this article examines the role of the Commission as a non-majoritarian actor in the policymaking processes leading to the adoption of three instruments proposed within the European Green Deal: the EU Deforestation Regulation, the Carbon Border Adjustment Mechanism and the Corporate Sustainability Reporting Directive. The article demonstrates that in all these cases the preferred policy options pertaining to the general design of the legal instrument identified by the Commission in impact assessments found its way into the final legislative texts. Furthermore, the most important elements of the Commission proposals such as their scope and regulatory burden were not meaningfully modified by the legislative institutions. At the same time, the Commission recently proposed to substantially revise all the three instruments without relying on impact assessments, which shows that the Commission's commitment to expertise and evidence-based policymaking is sometimes opportunistic. This article is a contribution to a Special Section that critically analyses the role of non-majoritarian instruments and institutions with respect to three challenges that shape contemporary democracies in Europe: socio-economic inequality and discrimination, growing authoritarianism, and the pressing climate crisis.

One. Introduction

The European Commission is the key executive actor in the EU institutional setup. It is mandated to oversee the application of EU law and act as the guardian of the Treaties. As an executive institution, it benefits from departmental specialisation and high-skilled bureaucracy. The Commission arguably enjoys the greatest institutional expertise among the EU institutions. At the same time, it benefits from the exclusive legislative initiative, proposing draft legal acts which are subsequently modified and enacted by legislative institutions, namely the Parliament and the Council. The flip side to the power of initiative is the Commission's lack of legislative competences which can be justified by its weaker democratic legitimacy as compared to the Parliament and the Council.

The Commission arguably meets the criteria of a "non-majoritarian institution" as outlined by Mark Thatcher and Alec Stone Sweet who defined these institutions as 'governmental entities that (a) possess and exercise some grant of specialised public authority, separate from that of other institutions, but (b) are neither directly elected by the people, nor directly managed by elected officials'. The Commission is a governmental entity enjoying a specific role in the EU legal order and it is not directly electable, unlike, for instance, Members of the European Parliament or some members of the European Council. One could debate to what extent the Commission's authority is specialised, considering that the Commission is indispensable to EU action in any policy field. At the same time, one of the key sources of Commission's legitimacy is expertise which plays a critical role in its function as an agenda-setting policymaker which arguably makes the Commission's authority specialised.

The Commission's institutional expertise is illustrated by its commitment to evidence-based policymaking codified in the Better Regulation Agenda. One of the most tangible expressions of this commitment is the practice of policy evaluation, especially in the form of conducting impact assessments accompanying legislative or treaty-making proposals. These policy evaluations are supposed to create a regulatory culture where impacts of policy decisions are expected to be backed up by empirical evidence and informed by a comprehensive analysis of costs and benefits of various policy actions. They also contribute to the Commission's accountability vis-à-vis other actors, reinforcing its output legitimacy.

The Commission's expertise is complemented by its framing powers which potentially allow it to present specific decisions in a way that is politically favourable to its broader policy agenda. This expert-executive nexus suggests that the Commission might enjoy some advantage over other actors and, long-term, its institutional preferences could shape the policy agenda in the EU. At the same time, the Commission's democratic legitimacy cannot be compared to that of the Council and the Parliament, which suggests that it is not a suitable institution to single-handedly exercise executive leadership in the EU. Likewise, there might be some tension between policy decisions informed by expertise (for instance, when, according to an impact assessment, a specific policy intervention will likely benefit the economy or effectively address an environmental concern) and democratic preferences (which might be less sympathetic to expertise-driven arguments and focus on emotional or identity-related considerations). This concern can be exacerbated by the relative remoteness of EU politics for the majority of European citizens. In this connection, it is possible to see the potential conflict over expert-driven policy solutions and democratic preferences as one of the dimensions of dissensus over law and policy in the EU.

Nine. Dissensus over liberal democracy was defined by R Coman and N Brack "as a conflict between different types of actors, either about the fundamental principles of liberal democracy (its institutions or polity) and rights

Against this backdrop, this article examines the role of the Commission as a non-majoritarian actor in the EU policymaking process in the specific context. It analyses whether in three specific policymaking processes the European Commission's expertise and framing powers translated into tangible results. To this end, this article reviews the process leading to the adoption of three highly consequential pieces of legislation that form part of the European Green Deal programme: the Regulation on Deforestation-free products, the Carbon Border Adjustment Mechanism, and the Corporate Sustainability Reporting Directive. The article demonstrates that in all these three cases the preferred policy options pertaining to the general design of the legal instrument identified by the Commission in impact assessments found its way into the final legislative texts. Furthermore, the most important elements of these pieces of legislation such as their scope and regulatory burden were not meaningfully modified by the legislative institutions. While the analysis of three case studies is by no means exhaustive, it shows that the democratic credentials associated with the Ordinary Legislative Procedure (which was the applicable decision-making procedure in all the three cases) did not translate into significant engagement of the legislative institutions, at least in formal terms. This can be seen as a symptom of the effective use of Commission's agenda-setting and framing powers. However, further research would need to verify the role possibly played by other factors, for instance the strategic use of timing by the Commission with respect to political feasibility of its proposals or the role of the European Council in empowering the Commission or narrowing down the scope of its action.

The choice of the specific case studies is connected to two issues. First, the focus on the European Green Deal instruments stems from the fact that while there is undeniable scientific consensus about the need to pursue ambitious climate action, it is by no means obvious what policy choices should be made in order to reduce emissions and, at the same time, preserve social cohesion and economic competitiveness. Climate policies, because of their scope and ambition, are likely to generate winners and losers and entail difficult trade-offs. The fear over the consequences of these trade-offs have generated strong reactions in some Member States and it seems that climate policy instruments are likely to continue to be contentious. In this connection, it is important to examine how much space for democratic debate there is with respect to the adoption of transformational policy instruments and what role expertise-driven arguments play in the legislative process.

Secondly, all the three pieces of legislation have recently come into the spotlight in the context of the deregulatory turn embraced by EU institutions post-twenty twenty-four elections to the European Parliament. The so-called Omnibus package proposed significant revisions of both the C B A M eighteen and the CSRD nineteen. In turn, the date of entry into application of the EUDR was postponed by one year and the adopted rules will only start to apply on thirty December twenty twenty-five. In the recent days, it was speculated that the date of entry into application might be pushed even further into the future. It is important to note that the Commission proposals presented within the Omnibus package were not preceded by impact assessments. In this connection, the analysis presented in this article suggests that the Commission's commitment to expertise and evidence-based policymaking is sometimes opportunistic. An important factor in this context is the change of the political composition of the European Parliament and the governing majorities in many Member States of the EU that occurred in the meantime. At the same time, the fact that the Commission's commitment to evidence-based policymaking can be overridden by a change of political majorities in the EU and national contexts can be seen as a symptom of shifting dynamics in the EU's institutional balance whereby the relative power of a non-majoritarian actor such as the Commission has been weakened.

The analysis proposed in this article proceeds as follows. Section two reviews the process leading to the adoption of the EUDR. I first review the impact assessment accompanying Commission legislative proposals for the EUDR, reconstructing the reasons for the policy intervention and the policy design that was supposed to serve the identified objectives. Subsequently, I compare the legislative proposal submitted by the Commission with the final legislative text, examining selective aspects thereof, especially the scope of the EUDR (covered commodities), the specifics of due diligence obligations imposed on importers of EUDR commodities, the benchmarking system as well as penalties for non-compliance with the Regulation. Section three dedicated to the CBAM and section four - dealing with the CSRD - follow a similar structure. They first discuss the policy design chosen in the Impact Assessments and proceed to analyze the changes to the selected parts of the CBAM and the CSRD proposals, especially their scope and the potential burdens on economic operators. The discussion does not engage in detail with the substantive issues related to the three examined instruments as the analysis focuses on the policymaking process and the role of Commission's expertise and framing powers. Section five offers concluding remarks.