Notice and comment in the Community would significantly change the way comitology operates. In the Community system, less information about rules is made available to the general public, the public has no right to participate in the administrative process, individuals affected by rules are rarely able to challenge them in court, and judicial review is fairly deferential. In this section, I give an overview of the administrative procedure of comitology and the judicial review of implementing rules.
In Community rulemaking, advisory, management, and regulatory committees are composed of representatives from the member states and the Commission, the Commission representative serves as the committee president, time for debating a Commission proposal is set by the president, and voting is by qualified majority. Although previously committee rules of procedure were not published, under the Comitology Decision adopted in 1999, standard rules of committee procedure are to be developed and published in the Official Journal.72 The Treaties, as interpreted by the Court, require that a final rule, like all other Community acts, be published in the Official Journal, contain a statement of legal basis (the basic measure pursuant to which it is issued), and explain, albeit summarily, the reasons for its adoption.73
As a result of the Comitology Decision of 1999, the public has greater access than before to rulemaking. Previously, the first point at which the public had a right to information was when the rule was to take effect, at which time the Commission or Council was obliged to publish the rule in the Official Journal.74 Thus, even though interested firms and individuals were often given advance warning and were consulted by the Commission and national ministries that sent representatives to sit on comitology committees, they had no legal guarantee of notice. This secrecy persisted even after the fact: the public did not have a right of access to the rulemaking record, namely the Commission's proposal, other preparatory documents, and the minutes of comitology and Council meetings.
As a consequence of the Decision, the public can now obtain comitology documents by making information requests to the Commission.75 Further, under the Decision, the Commission must establish a public register containing references to all documents transmitted to the European Parliament (e.g. proposed draft measures, committee agendas, etc.) thereby informing individuals of the progress of rulemaking proceedings.76 Depending on the time lag between transmission to Parliament, publication in the register, and Commission delivery of documents pursuant to an information request, individuals might be able to obtain access to the rulemaking record before the final rule is issued and certainly will be able to do so afterwards .
The Court of Justice treads lightly upon the Community bureaucrat's powers. As a result of locus standi law, few may directly challenge implementing rules. Article 230, the Treaty provision that confers jurisdiction upon the Court to review Community acts, gives member states, the Council, and the Commission automatic standing. Parliament may bring suit if it can claim that its powers have somehow been violated. Although Parliament has always had strong grounds for obtaining locus standi with respect to implementing rules based on co-decision legislation, it is in an even stronger position after the Comitology Decision of 1999. If Parliament opposes a co-decision implementing rule and the Commission or Council disregard its position, Parliament is guaranteed a day in court.
For individuals, however, it is very difficult to obtain judicial review of implementing rules. To gain access to the Court, the Community act must be of "direct and individual concern." This has been interpreted narrowly by the Court as requiring that the act be intended to regulate a situation that specifically concerns the litigant.77 Consequently, those affected by implementing rules will generally be denied locus standi because, by the very nature, rules are written to regulate entire industries and benefit the public-at-large. Instead, prospective litigants must wait for the rule to be enforced locally and then challenge enforcement in their domestic court on the grounds that the Community rule is invalid, at which point the court may refer the matter to the Court of Justice and obtain a preliminary ruling on the issue under Article 234 (National courts are required to make preliminary references when they believe Community measures to be invalid.) Not only is this a lengthy procedure, but it is highly contingent on national locus standi law which in some member states precludes challenges from public interest groups and others not directly involved in rule enforcement.78
There are three grounds for challenging implementing rules in the European Court of Justice. First, a litigant may oppose a rule on procedural grounds, for instance it was adopted without an adequate statement of reasons or the Commission failed to submit the measure to the apposite comitology committee for an opinion. Second, a litigant may complain that the measure contravenes or rests upon a flawed interpretation of a Treaty or statutory term. Third, a challenge may be based upon the claim that the evidence or reasoning that led to the rule's adoption was flawed. The latter set of arguments can be framed in a variety of ways.79 Most on point is the claim that the Community institution committed a "manifest error of appraisal" when assessing the data and policy considerations. The litigant may also complain that the measure violates the principle of proportionality, a means-ends test that finds its origins in German administrative law and may be invoked in any case involving a Community or member state act. As the Court explained:
[I]n order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it.80
Thus, the litigant would argue that a rule is technically flawed and therefore cannot solve the problem the legislator or administrator is attempting to address or is unduly burdensome, given the existence of other, less onerous policy options, and consequently is not proportionate to the stated objective of the rule. Finally, the doctrine of misuse of powers may be invoked. Misuse of powers is defined in the Court's case law as "the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case."81 Because the flawed analysis rendered achievement of the stated end an impossibility, goes the argument, the measure had to have been adopted with another end in mind.
Judicial review in rulemaking cases is narrow in scope.82 It is no great secret that the Court tends to be tough on national measures accused of violating the Treaties, Community legislation, or general principles of Community law and to go easy on those issued by Community institutions.83 Take the way that the principle of proportionality is applied. Because national laws run the risk of operating as barriers to trade, the Court tends to engage in an exhaustive inquiry, carefully weighing a measure's burden against its supposed aims and considering alternative, less cumbersome policy options. Community measures, which do not pose a threat to free trade, rarely run afoul of the proportionality principle.84 As between a Community legislative and administrative measure, however, the Court does not draw much of a distinction even though one is passed pursuant to the Treaty and therefore undergoes the full legislative process and the other follows an abbreviated procedure. The failure to distinguish between legislation and administrative acts is tied to the idea that regardless of which Community institution issues a measure, it can be trusted to protect against national parochialism and make the right, pro-Community policy choice.
This being said, the Court in one case showed itself to be more demanding when assessing whether the Community had successfully cleared all of the procedural hurdles for adoption of an act. In Angelopharm v. Freie und Hansestadt Hamburg,85 the Court found that even though the basic legislation was ambiguously drafted and did not clearly obligate the Commission to consult the scientific committee in the area, consultation was indispensable because of the implementing rule's technical nature. The Court said:
[I]t is clear that the Scientific Committee, which consists of individuals who are highly qualified in disciplines relevant to cosmetology, such as medicine, toxicology, biology and chemistry, was created in order to provide the Commission with the assistance necessary to examine the complex scientific and technical problems entailed by the drafting and adaptation of Community rules on cosmetic products.86
To compensate for the abbreviated procedure leading to the measure's adoption, or in other words the administrative as opposed to legislative nature of the act, the Court required the Commission to consult scientific experts, a guarantee of sorts that the Commission was engaging in rational decisionmaking.
A challenge based on an alleged misinterpretation of a Treaty or legislative provision is also slightly easier to mount in the case of an implementing rule. The reason here is not that the Court is more wary of implementing as opposed to basic rules, but rather that the governing legal text is more detailed in the case of the former. To take the example of a case that will be discussed at length below, an agricultural policy legislative measure must comply with the fairly open-textured Treaty instruction to increase agricultural productivity, ensure a fair standard of living, stabilize markets, assure the availability of supplies, and ensure that supplies reach consumers at reasonable prices.87 Conversely, the "essential elements" of a piece of legislation, the basic guidelines that an implementing measure must follow under the Court's jurisprudence, can be very detailed.88 In the Pesticides Directive case, those included pesticide authorization only where "it has no harmful effect on human or animal health, directly or indirectly (e.g. through drinking water, food or feed) or on groundwater" and where "it has no unacceptable influence on the environment, having particular regard to . . . its fate and distribution in the environment, particularly contamination of water including drinking water and groundwater [and] its impact on non-target species."89 Although this language leaves significant room for interpretation, it is obviously a far more detailed and comprehensive set of instructions than those laid down in the Treaty.
Finally, until passage of the Comitology Decision of 1999, a fact-based challenge to an implementing rule in which the litigant questioned the Community's scientific evidence or policy analysis had just as little chance of succeeding as the equivalent challenge to a basic measure. When the Court reviews legislation it allows the Community institutions ample room for discretion. In Germany v. Parliament & Council, a recent case involving a financial directive instituting consumer-protection, deposit-guarantee schemes, the Court noted that the regulated field was "economically complex."90 It went on to state that:
[I]n such a situation the Court cannot substitute its own assessment for that of the Community legislature. It could, at most, find fault with its legislative choice only if its appeared manifestly incorrect or if the resultant disadvantages for certain economic operators were wholly disproportionate to the advantages otherwise offered.91
This deference applies in implementing rule cases as well. For instance, in an earlier case involving a Commission agricultural policy regulation, I. Schroeder KG v. the Federal Republic of Germany [Tomato concentrates],92 the Court adopted the very same approach. The issue was whether the regulation would indeed prevent cheap tomato concentrate imports from flooding the Community because of the many possibilities of circumventing the price floors set by the Commission. The Court refused to get into the merits of the policy choice, stating that:
Since in the present case it is a question of complex economic measures, which for the purpose of their efficacy necessarily require a wide discretion and moreover as regards their effects frequently present an uncertainty factor, the observation suffices that these measures do not appear on issue as obviously inappropriate for the realization of the desired object.93
With the greater access to comitology documents instituted in the Comitology Decision of 1999, however, the Court is in a position to take on a more active role. Before, without a record of what happened in the administrative proceeding, it was almost impossible for a court to seriously consider the merits of an argument challenging the reasonableness of a policy choice.94 Aside from the contents of the pleadings, the Court did not know what data and reasoning had led to adoption of one regulatory approach over another. Thus, it could not assess whether the decision, at the time it was made, was unsound (as claimed by the challenger) and to the extent that it wished to evaluate whether, in retrospect, the decision was a reasonable one, it had to rely on the pleadings, which were likely to contain unsubstantiated, ad hoc policy arguments. Now that the Parliament and individuals have access to the rulemaking record, they have far stronger grounds on which to challenge implementing rules.
72 See Council Decision 1999/468/EC, art. 7.1, 1999, O.J. (L 184) 23, 25.
73 Under Article 253 of the Treaty, the Court simply requires the responsible Community institution to show a rationale without carefully scrutinizing it.
74 Indeed, prior to Maastricht, not even this was the case since not all directives were required to be published.
75 See Council Decision 1999/468/EC, art. 7.2, 1999 O.J. (L 184) 23, 25.
76 See id. art. 7.5.
77 See, e.g., Case C-321/95 P, Greenpeace v. Commission, April 2, 1998, para. 28 ("where, as in the present case, the specific situation of the applicant was not taken into consideration in the adoption of the act, which concerns him in a general and abstract fashion and, in fact, like any other person in the same situation, the applicant is not individually concerned by the act").
78 The lack of uniform access to national courts is widely recognized as problematic. Generally, public interest litigants in national courts are thought to serve a useful policing function, forcing foot-dragging member states to implement Community law. See Eckhard Rehbinder, "Locus standi, Community Law and the Case for Harmonization," in Protecting the European Environment: Enforcing EC Environmental Law 151 (Hans Somsen ed., 1996). Although the Community has generally been wary of tampering with national procedure, a directive has been passed giving public interest groups the right to enforce Community consumer protection law. See Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers' interests, 1998 O.J. (L 166) 51.
79 See generally Cases C-157/96 & C-180/96, The Queen v. Ministry of Agriculture, Fisheries and Food & United Kingdom v. Commission, May 5, 1998 (upholding Commission emergency measure banning export of UK beef against challenges of lack of competence, misuse of powers, and breach of principle of proportionality).
80 Case C-233-94, Germany v. Parliament and Council, 1997 E.C.R. I-2405, para. 54. At least two equivalents to the principle of proportionality exist in American administrative law. An arbitrary and capricious reasonableness challenge to a regulation often includes the claim that the means chosen by the administration imposes an undue burden on litigants which could be avoided through the choice of an equally effective but less burdensome policy option. Further, agencies are required by Congressional statute and executive order to undertake a cost-benefit analysis for all significant regulations. In American constitutional law, equal protection analysis bears some resemblance to the proportionality principle.
81 Case C-156/93, Parliament v. Commission, 1995 E.C.R. I-2019, para. 31.
82 See generally Christian Joerges, Scientific Expertise in Social Regulation and the European Court of Justice: Legal Frameworks for Denationalized Governance Structures, EUI Working Paper RSC No. 96/10 (1996).
83 See Renaud Dehousse, The Legacy of Maastricht: Emerging Institutional Issues, 3 Collected Course of the Academy of European Law 181, 212 (describing Court's leniency towards Community measures).
84 For instance, in Criminal Proceedings v. Wurmser, the Court found that a French law requiring importers to prove conformity of imported products with consumer protection rules would only be proportionate if it allowed importers to rely on means of proof normally available to them, e.g. certificates and attestations provided by the manufacturer as opposed to actual analysis of the product. Case 25/88, 1989 E.C.R. 1105. In Südzucker Mannheim & Ochsenfurt AG & Hauptzollamt Mannheim, by contrast, the Court upheld a Commission common sugar market regulation imposing an economic penalty on traders failing to produce a specific Community certificate. The Court reasoned that other certificates could not substitute for the Community one because of the excessive administrative work such alternative means of proof would cause for member state authorities. Case C-161/96, January 29, 1998. Similarly, in Kieffer & Thill, the Court upheld a Community regulation imposing certain information-collection obligations on firms involved in trading goods between the member states. The litigants claimed that such duties were burdensome and costly, especially for small and medium-sized enterprises, but the Court found the duties to be reasonable and held that the measure was a legitimate exercise of the Community legislature's discretionary powers. Case C-131/96, 1997 E.C.R. I-3629.
85 Case C-212/91, 1994 E.C.R. I-171, para. 33-38.
86 Id. para. 35
87 Art. 33 EC.
88 See, e.g., Case C-303/94, European Parliament v. Council of the European Union, 1996 E.C.R. I-2943, para. 31 (setting down "essential elements" test).
89 Council Directive 91/414, 1991 O.J. (L 230) 1, 4-5.
90 Case C-233/94, 1997 E.C.R. I-2405, para. 55.
91 Id. para. 56.
92 Case 40/72, 1973 E.C.R. 125.
93 Id. para. 14.
94 Although a system of court-appointed experts might offer a solution to this problem, it would be difficult to run. In the rulemaking area, where highly discretionary policy choices are made, the difference in opinion can be vast, making agreement on a set of impartial, neutral experts very difficult. Moreover, independent fact-finding powers would transform the Court into a Community super-agency, unnecessarily repeating the work of the Commission and national experts and turning it into an institution it was never designed to be.