Bureaucratic Collusion: The (Limited) Scrutiny of Delegated Powers in the European Union

Delegation of powers is an essential aspect of European integration, and a major site of inter-institutional and inter-level relations in the European Union. The practice of delegating to the European Commission the power to adopt non-legislative rules, delegated acts and implementing measures has grown over the past decades, and the functioning of the EU's system of governance now depends on such delegated powers. The expansion of delegated powers in the EU has gone hand in hand with the creation of mechanisms that allow the delegating actors - the Council and the European Parliament - to scrutinise how these powers are employed. However, the establishment and operation of such scrutiny mechanisms has gradually become the cause of tensions between the three institutions, and has also attracted attention of observers and academic scholars. With regard to the latter, much of the recent analysis has concentrated either on formal arrangements from a legal perspective, or on the application of principal-agent models which both assume that member states or legislative institutions control the European Commission in its execution of delegation powers. Though this is a rule, in practice, there is little evidence of systematic control being exercised over the European Commission. Instead, the Commission appears to be in command of the process of centralized policy-implementation. This paper addresses this puzzle by advancing an alternative concept, namely that of bureaucratic collusion, characterised by close cooperation between administrative actors on the European and the national level, the marginalisation of political conflict and the resultant de-politicisation of non-legislative rule-making. The paper then explores the application of this concept in the interaction between Commission officials and member states' representatives - in comitology committees and expert groups - in order to identify the factors that explain the persistence of bureaucratic collusion. Furthermore, the paper also considers the impact of the European Parliament as an actor in this system. The EP has, since the Lisbon Treaty, a significant role in the scrutiny process over a part of the Commission's delegated powers. Yet, while the EP does not participate in the practice of bureaucratic collusion, its actual capacity (and interest) for engagement in the scrutiny process is very limited, raising further questions about the effectiveness of the control mechanism. In conclusion, the paper discusses the conditions under which effective control of the Commission's delegated powers takes place, and discusses the implications that this has for governance in the European Union more generally.