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Shifting competences andchanging preferences: the case ofdelegation to comitologyCatherine Moury & Adrienne HéritierVersion of record first published: 27 Apr 2012.

To cite this article: Catherine Moury & Adrienne Héritier (2012): Shifting competences andchanging preferences: the case of delegation to comitology, Journal of European PublicPolicy, 19:9, 1316-1335

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Shifting competences and changingpreferences: the case of delegation tocomitologyCatherine Moury and Adrienne Heritier

ABSTRACT The article examines how changes of powers in the inter-institutionalbalance have affected the willingness of the Commission and the Council to delegatelegislative power to comitology committees. Starting from the assumption that actorsseek to maximize their institutional power in order to increase their influence overpolicy outcomes, we argue that changes of institutional rules affect their willingnessto adopt legislation through comitology procedures. We examine the effects of theintroduction of the 1999 comitology decision, which increased the competencesof the Commission in the comitology procedure by abolishing the ‘double safetynet’. We show that the Commission has proposed delegation to management andregulatory committees more extensively since the adoption of this decision. Surpris-ingly, the Council – which saw its own competences reduced by the decision – didnot put up significant resistance to the more frequent use of delegation.

KEY WORDS Comitology; delegation; European Commission; EuropeanUnion; implementation; institutional change

1. INTRODUCTION

For each legislative issue on the agenda, legislators have to decide whether to del-egate the task of fleshing out the details of legislation to the executive and/or toexpert decision-making bodies, or alternatively to spell out all aspects of thedecision in the legislation itself. The reasons guiding this choice have longbeen of prime interest to political science. The theoretical debate has concen-trated on principal–agent theory to explain why and how politicians delegatedecision-making to bureaucrats, to independent regulatory agencies and toother actors (see, for example, Lupia and McCubbins 2000; Majone 1996;McCubbins and Schwartz 1984; Pollack 2003; Strøm 2000).

In this article, we focus on a specific type of delegation: the delegation of leg-islative power to the European Commission. More precisely we investigate thegranting to the Commission (in collaboration with committees of memberstates) of the competences to pass secondary legislation which details, completesor even amends the original legislation. This type of delegation is widespread:around two-thirds of all directives, regulations and decisions in force today

Journal of European Public PolicyISSN 1350-1763 print; 1466-4429 online # 2012 Taylor & Francis

http://www.tandfonline.comhttp://dx.doi.org/10.1080/13501763.2012.677189

Journal of European Public Policy 19:9 December 2012: 1316–1335

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have been made by the Commission in comitology, while about one-third onlyhas been made by the Council and the European Parliament (EP) (Brandsmaand Blom-Hansen 2011; Heritier et al. 2012, forthcoming).

Adopting a different theoretical perspective from that of the principal–agent,we build on Knight’s (1992) distributive bargaining theory and contend thatinstitutional actors’ preferences for delegation – and hence, the final legislativeoutcome – depend on their competences in the legislative and delegation pro-cedures. We expect that new delegation rules shifting power between insti-tutional actors would affect their preferences for delegation: the actor(s) whogained competences under delegation will increasingly opt for delegation,whereas the actor(s) who suffered a relative loss in competences will choose del-egation to a lesser extent.

In this article, we empirically test this argument by analysing data on all leg-islative proposals based on article 43 (common agricultural Policy, QualifiedMajority Voting [QMV], consultation) adopted by the Commission between1995 and 2008. We show that following the changed comitology decision of1999, the Commission was increasingly willing to propose delegating moreimplementing powers to itself, especially to management and regulatory com-mittees. Contrary to our expectations, this increase in delegation was notopposed by the Council.

2. SETTING THE SCENE: EUROPEAN LEGISLATION ANDCOMITOLOGY

The comitology system dates back to the 1960s when the Council, overbur-dened with the implementation of the Common Agricultural Policy, decidedto delegate some implementing powers to the Commission (Bergstrom 2005;Vos 2009). However, as a majority of member states still wanted to retainsome control, committees of member states were set up to supervise the Com-mission implementing activities – the so-called ‘comitology committees’.

While the legality of these committees was confirmed by the European Courtof Justice in 1970,1 it was only with the Single European Act that they becameformally defined and recognized. The Treaty, however, did not specify the pro-cedures of delegation to be used in a particular policy area, and it gave theCouncil a primary role in determining the procedures that should be appliedin a given instance.

The First Council Comitology Decision of 1987, featured three types of com-mittee from which member states were able to choose on the basis of a draft ofthe Commission: advisory committees whose vote was not binding for theCommission; management committees in which the Commission neededonly to avoid having a qualified majority of member states against its draft;and regulatory committees in which the Commission’s draft decision had tobe approved by a qualified majority. Contrary to the explicit wish of the Com-mission (and the European Parliament), the Decision also provided for two var-iants of the management and regulatory committees (see Table 1). The 1987

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Table 1 Main changes for the three most frequently used committees

Committee 1987 Council Decision 1999 Comitology Decision 2006 Comitology Decision

Advisory The Commission must take the ‘utmostaccount of the committee’s opinion’.

No change No change

Management The Commission can enact the measuresunless the committee opposes it by QMV. Inthat case:

No change No change

A: the Commission may enact the measure butthe Council has one month to take a differentdecision by QMV;

3 months rather than one month No change

B: the Commission must defer the measures forthree months. After this time, the measurewill be enacted unless the Council takes adifferent decision by QMV.

Abolished No change

Regulatory The Commission can only enact the measureswhen the committee agrees by QMV, if not:

No change No change

‘Net’: the Commission adopts the measure ifthe Council has not acted (by QMV) withinthree months.

Added: right of information of the EPAdded: if the Council opposes theproposal, the Commission shall re-examine it and may re-submit anamended proposal or a legislativeproposal

No change

‘Safety Net’: the Commission adopts themeasure if the Council has not acted (byQMV) or rejected the measure (by simplemajority) within three months.

Abolished Included: ‘Regulatory with scrutiny’:EP and Council have the ability toblock the adoption of the proposedmeasure

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Council decision also provided for a more exceptional ‘safeguard procedure’ tobe used when the Commission had been granted temporary powers; it alsorecalled that the Council could delegate implementing powers to itself ratherthan to the Commission.

This decision stayed in force for more than a decade until it was revised in1999 in order to address the European Parliament’s concerns – particularlycompelling since it became a co-legislator with the Maastricht Treaty –about being excluded from the comitology system. The new Council decisionintroduced three innovations. It abolished the second variant of both the man-agement and regulatory procedures; it included criteria to guide the choice ofspecific comitology procedures (which were nevertheless non-binding) and itincluded various mechanisms to inform the Parliament of the activities of thecomitology committees.

The Second Comitology Decision was revised in 2006, mainly in order toaddress the Parliament’s remaining discontent vis-a-vis the functioning of comi-tology. It created a new regulatory procedure (‘regulatory procedure with scru-tiny’), to be used for acts adopted under codecision. Under this procedure, theCommission had to submit its draft implementing measure to both the Counciland the Parliament, even after it had received a positive opinion from the com-mittee. Both the Council and the Parliament were able to block the adoption ofthe proposed measure and send the proposal back to the committee. If it wasrejected, the Commission had to present a new draft measure or a new proposalfor legislation (Bergstrom 2005: 249–85; Bergstrom and Heritier 2007;Bergstrom et al. 2007).2

Table 1 presents the main changes included in the 1999 and 2006 Comitol-ogy Decision for the three most frequently used committees.

The recent entering into force of the Lisbon Treaty breaks new ground by dis-tinguishing between legislative delegation and executive delegation for the firsttime. It established two separate procedures for delegated acts and implement-ing acts. For delegated acts, the Commission – by legislation – may be delegatedthe power to adopt acts supplementing or amending certain non-essentialelements of the legislation in question. Both the Council and the Parliamentmay prevent the entering into force of the delegated acts within a certainperiod of time (‘objection’); or take back the delegation of powers (revocation’).For implementing acts, the Commission – again by legislation – can be del-egated the power to detail legislation which needs to be uniformly implementedacross member states. In December 2010, a new Comitology Decision waspassed by a co-decision procedure (in accordance with the new dispositionsof the Lisbon Treaty). It replaced the old management and regulatory procedureby an examination procedure, in which there can be no intervention from theCouncil as an appeal body. The new regulation also includes a right of scrutinyso that each co-legislator (Parliament and Council) can alert the Commissionwhenever it considers that a draft implementing act exceeds the implementingpowers provided for in the relevant European Union (EU) legislation. Also inDecember 2010, the three institutions also agreed on a Common

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Understanding on delegated acts, in which the Commission commits to carryout consultations with member states when preparing a delegated act.

3. DELEGATING IMPLEMENTATION: THEORETICALARGUMENTS

Principal–agent theory has been the most widely used approach to explain thereasons for delegating and ways of controlling the agent. From this perspective,delegation is likely to take place when the delegating party expects the benefits ofdelegation to outweigh the costs. This will generally happen when the principal(1) does not dispose of the necessary expertise in a policy area, (2) wishes toincrease the efficiency and speediness of decision-making, (3) needs to makecredible commitments or (4) desires to shift blame (see, among many others,Epstein and O’Halloran 1999; Fiorina 1986; Huber and Shipan 2002; McCub-bins and Page 1986). The theory, as such, has been applied to a wide variety ofdelegation relationships in which a principal delegates a task to an agent and seeshimself confronted with the problem that the agent may ‘shirk’, i.e., deviatefrom the originally mandated task.

In EU studies, scholars have empirically tested whether these reasons for del-egation capture the discretion3 conferred on the supranational institutions likethe Commission. Pollack (2003) found that, in treaties, member states granteddiscretion to the Commission when there was a need for speed, efficiency andcredible commitment. When focusing on the Council delegating implementingpowers to the Commission, Franchino (2002, 2004, 2007) showed that theamount of delegation and discretion given to the Commission increases whenthe voting rule is qualified majority voting and when the policy area at stakeis complex. Based on the data from the Comparative Manifesto project,4 hedeveloped proxies for Commission, Council and member states’ preferencesand also found that discretion increases together with the degree of conflictwithin the Council, between the Council and the Commission and betweenthe European Parliament and the Council. The latter finding, however, wasnot confirmed by Thomson and Torenvlied (2010) who relied on interviewdata to measure actors’ preferences.

Adopting a different theoretical perspective from that of the principal–agent,we build on our argument on distributive power-based bargaining theory andargue that actors’ preferences for delegation are a function of institutionalrules. Actors aiming for legislative outcomes as close to their preferences as poss-ible seek to ensure that a policy is enacted through procedures which maximizetheir own control over the process of policy-making. In other words, they are‘competence-maximizers’ (Bergstrom et al. 2007; Heritier 2007; Jupille2004).5 We expect actors to engage in an explicit or implicit bargainingprocess to press for an increased use of procedures that increase their own com-petences, and for the less frequent use (and, where possible, the alteration orabandonment) of those procedures that do not (Lax and Sebenius 1986;Osborne and Rubinstein 1990: 1). Whether the actors are successful in selecting

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their favourite procedure depends on the agents’ relative bargaining power,which in turn is reflected by the given formal rule at that particular momentand the actors’ credibility, sensitivity to failure and time horizons (Bacharachand Lawler 1981; Elster 1989; Knight 1992: 127; Maynard-Smith 1982:153; Raiffa 1982). Actors who are powerless in a given arena can also use thepowers they have in another linked arena to increase their competences in theformer (Farrell and Heritier 2007; Heritier 2007; Moury 2007).

Applied to the specific case of delegation to comitology, we argue that, whenrules are changed in a way that modifies the Council, Commission and/or Par-liament’s ability to influence policy, the preferences of these actors for legislationor delegation will change accordingly (see also Heritier and Moury 2011). Or,more specifically, if an actor – by a change of a rule – sees its competencesincreased in delegation/legislation, it is likely to tend to favour a more extensiveuse of the procedure in which it has been empowered.

The above interpretation does not mean that every change of a rule which isfavourable to a given actor would automatically modify its meta-preferences fordelegation or legislation and bring to an end its quest for the alteration of a rule– this will only happen when changes include large shift of competences. But,given that this actor’s resources are limited, our reasoning implies that it wouldless frequently oppose delegation on individual legislative items after having beenempowered in delegation. This is particularly likely to be true when the changeof a rule answers to (one of the) actor’s preferences. Alternatively, when thechange of a rule contradicts, or falls short of, the actor’s minimum expectanciesregarding delegation, a decrease in the opposition to delegation on individuallegislative items does not happen (Heritier and Moury 2011).

3.1. Institutional bargaining theory applied: hypotheses

We focus on the change of preferences over legislative outcomes which resultedfrom the Comitology Decision of 1999. Given this research question, there aresome important differences between our focus and the one of the principal–agent theorists. First, we analyse here a more specific type of delegation: thedecision to delegate, or not, powers to the Commission to pass secondary legis-lation (in collaboration with committees of member states). For example, wedo not consider here the clauses enabling the commission to take non-legislativedecisions in a given area with or without consulting a committee of memberstates.6 A second difference in our approach lies in the type of control mechan-isms for the Commission. Whereas many authors include a large variety ofcontrol mechanisms (Franchino 2004), it makes sense, theoretically, to focusexclusively on the comitology committees. This choice is in line with the litera-ture which focuses on comitology procedures exclusively, often as deck-stackingrules, i.e., those rules ensuring that the interests of the principal are protected(Brandsma and Blom-Hansen 2011; McCubbins et al. 1987). Finally, we alsoinclude the Commission’s preferences for delegation as a dependent variable.In our view, this is crucial to understand the final legislative outcomes: the

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Commission’s right of initiative in legislation, together with the fact that unani-mity is needed to change a Commission proposal, grants the latter considerableinfluence. Hence, a change of the Commission’s preferences regarding del-egation also influences the legislative outcome.

While elsewhere we investigated the effect of the European Parliament’s pre-ferences (Heritier and Moury 2011), here we focus on a policy area where theCouncil was the sole legislator until December 2009. Therefore, we only haveexpectations on the preferences of the Commission and the Council with regardto delegation and legislation, and – if delegation – the choice of a specific comi-tology procedure.

We assume that the Commission’s meta-preference is to delegate extensivelywithout or with minimal control by member states. However, the need to gainthe approval of member states (and Parliament) constitutes a serious constraintthat limits the scope for Commission influence – something that the Commis-sion anticipates (Pollack 2003). Hence, when the Commission anticipates thatthe Council will reject delegation altogether or delegation under the advisoryor management committees, it is likely to choose legislation or delegationunder a regulatory committee (respectively). As written above, the ComitologyDecision of July 1999 abolished the procedures, in both management and regu-latory committees, which had restricted the Commission’s power at the benefit ofthe Council (see Table 1). Although this decision does not include all ambitiouschanges proposed by the Commission,7 it answers to the Commission’s longquest for the abolition of the ‘double safety net’ mechanisms.

As a consequence, the Commission increased its chance of getting its favouritelegislative outcome passed in management and regulatory committees after1999. While this new Comitology Decision is not very likely to change theCommission meta-preferences of extensive delegation without control, ourtheoretical argument leads us to expect a change in the Commission’s strategicpreferences (i.e., those which anticipate Council opposition on large delegationwithout control). More specifically, we argue that the Commission would bekeener after July 1999 to propose delegation under management and regulatorycommittees for acts that could alternatively be adopted by legislation or withadvisory procedures.

We therefore submit:

H1: After the adoption of the Second Comitology Decision, the Commissionmore frequently proposed delegation of implementing powers under theregulatory and management procedures.

Additionally, it might be argued that the Commission anticipates the Council’sopposition to the use of management procedures for delegated acts that couldalternatively be adopted through legislation or with a regulatory committee.8

We therefore expect that, although the Commission was more willing to del-egate to management committees after 1999 than before, it would refrainfrom proposing this committee too frequently. By contrast, in regulatory com-mittees – in which the control of member states is greatest – the Commission is

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less likely to anticipate resistance. In other words, we expect that the Commis-sion delegated more frequently to both regulatory and management committeesafter the adoption of the Second Comitology Decision, but more so to regulat-ory than to management committees.

Hence, we posit:

H2: After the adoption of the Second Comitology Decision, the increase ofCommission proposals delegating to regulatory committees is higher thanthose delegating to management committees.

Finally, whereas member states in the Council suffered a relative loss of influ-ence in comitology with the 1999 Decision, their influence in legislationremained untouched. In other words, in July 1999 it becomes more difficultfor member states to get their favourite legislative outcome in managementand regulatory committees. In a similar reasoning to that given above, weexpect the Council – willing to protect its own institutional power – toresist the attempts of the Commission to delegate greater implementingpowers to management and regulatory committee after the Second ComitologyDecision.

H3: After the adoption of the Second Comitology Decision, the Councilwould more frequently reject Commission delegation proposals to manage-ment and regulatory committees.

4. EMPIRICAL TESTS

To test our hypotheses on Commission’s (H1 and H2) and Council’s (H3) pre-ferences, we built a database which traces the development of all Commissionproposals based on a given Treaty article in one policy sector, i.e., agriculture.The database uses the EU’s Eur-lex online catalogues, which allow us to scruti-nize the full text of all Commission proposals based on a given Treaty article andto identify the resulting final legislation as adopted by the Council since 1994.(For similar results with another data base see Annex 1 at https://sites.google.com/site/catherinemouryphd/publications/annexes-journal-article/jepp.)

Although we measure delegation in a different way than has been done before,it still makes a lot a sense to build on the principal–agent theorists’ findingswhen selecting control variables. Indeed, the variables which have beenproven to influence to decision to delegate a large variety of discretionarypowers is likely to hold true for the decision to delegate powers to pass secondarylegislation.

Existing studies on delegation to comitology (Franchino 2001, 2002, 2004;Pollack 2003; Thomson and Torenvlied 2010) demonstrate that delegationvaries across issue areas and according to the legislative procedure. In order tocontrol for these variables, we selected one article of the Treaty under whichthe legislative procedure did not change in the period of time under study(January 1995 to December 2008). Article 43/37 on the Common Agricultural

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Policy is the only Treaty article, amongst those on which a sizable number ofCommission proposals were based, which was subject to the same decision-making rule in the Council (QMV) and the same decision-making rule withrespect to the Parliament (consultation). We focus on non-amending proposalsexclusively to control for the change from the status quo (Franchino 2000).Finally, we analyse binding legal acts of general application (directly orindirectly through member states only, i.e., regulations and directives).

4.1. Dependent variables

For H1 and H2, our dependent variable is the existence, in each Commissionproposal, of a clause delegating the power to pass secondary legislation to theCommission (in collaboration with committees of member states). For H3,our dependent variable is the adoption, or not, of the proposal includingdelegation by the Council.

More specifically, in scrutinizing the legislative items based on Article 43,we ask:

(1) Does the proposal grant the Commission the power to pass secondary legis-lation? We identify all proposals including at least one provision enablingthe Commission to adopt secondary legislation (delegation proposals). Ingeneral, these provisions enable the Commission to pass acts executing ordetailing the legislation, to amend non-essential aspects of the law oreven to adopt annexes to it.

(2) Is the delegation proposal supported by the Council in the final act? When adelegation proposal was not passed by Council, the proposal was codified asnot being supported by Council. This was also the case when the Councilpasses the proposal but removes the delegating clause in a proposal orig-inally including delegation. When the Council added delegation in anon-delegation proposal, a delegation proposal was considered to havebeen adopted.9

(3) Which committee was proposed by the Commission in its proposal andadopted by the Council in the final act? If two different committees wereselected (which is seldom the case),10 the proposal was codified twice.

4.2. Independent variables

As described above, our data collection controls for policy area and for the leg-islative rules (QMV and consultation). As the revision of the ComitologyDecision in 2006 has no impact on legislative acts passed in consultation, the1999 Comitology Decision is the only institutional change for the policyarea selected during the period under study (1994–2008) . We henceintroduced a dummy, taking the value of 0 in the period preceding July 1999and 1 thereafter.

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We assume that proposals based on the same treaty article often require asimilar degree of technical expertise. But relying on a single treaty base is notsufficient to control for complexity. This variable is inherently difficult tomeasure and relying on proxies bears the risk of measuring something otherthan complexity itself. Nevertheless, we introduce ‘the number of recitals’11

as a control variable because it has proven to be correlated with discretion.Additional tests were also run with the number of words as an alternativecontrol variable.

We also include a variable to measure the workload per year in agriculturalpolicy. The Commission may anticipate the circumstance in which the Minis-ters of Agriculture have a large number of measures to process and – therefore –would be more willing to accept Commission delegation proposals. As a result,we took the overall number of proposals for legislation based on Article 43 intoaccount which were tabled by the Commission for each year, and computed avariable ‘workload’ per year.

We also control for the diversity of preferences of the Council and the Com-mission. While Franchino (2004) measures the divergence by counting thenumber of amendments the Council introduced in the Commission proposals,we focus on the percentage of paragraphs amended by the Council in the finaltext. We then compute a categorical variable running from 0 (both texts areidentical) to 100 (when every paragraph are amended or when the delegationproposal is never adopted).12

Moreover, we control for the number of member states as an increase in thenumber and diversity of principals may lead to more delegation (Epstein andO’Halloran 1999; Fiorina 1986). For this purpose, first we simply introducethe number of member states as a continuous variable. However, as thismeasure may be problematic, since enlargement has not been a continuousprocess, we additionally run the test with a dummy variable taking the valueof 0 before the enlargement to 25 member states in May 2004, and 1 afterwards.

We additionally break delegation down into delegation under directives anddelegation under regulations, and control for the use of a particular legislativeproposal. We expect to find a difference since directives leave the transpositionand implementation of legislation to member states while regulations aredirectly applied by national administrations.

As the Comitology Decision took place only a few months before the newCommission term of Prodi (September 1999), and since it might be arguedthat a new Commission would be willing to delegate as much as possible at thebeginning of its term,13 we introduce a dummy taking the form of 1 when thelegislation is proposed in the first year of a Commission term and 0 otherwise.

Finally, we introduce a dummy variable for the signature of the Lisbon Treatyin December 2007 (taking the value of 0 before this date and 1 afterwards). Aswe know, the Treaty introduced codecision for agricultural matters14 once itentered into force in December 2009. In earlier work, we showed that in thiscase the Commission anticipated its future loss of power to the EP andrushed to propose as much delegation to itself as possible, especially in the

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period following the signature of the Treaty and preceding its entry into force(Heritier and Moury 2011).

5. EMPIRICAL RESULTS

Our first two hypotheses focus on the Commission’s preferences for delegation,while the third examines those of the Council. Is our first hypothesis confirmedby empirical evidence?

We use a binary logistic regression to estimate whether the 1999 ComitologyDecision affects delegation to management and regulatory committees in theCommission proposals, controlling for other predictors. A logistic regressionanalysis is appropriate here because the dependent variable is a dichotomousvariable. The unit of analysis is the individual proposal (n ¼ 333). Since weare analysing the entire population of proposals in the field of agriculture, weshould not be overly concerned with the significance of the coefficient butrather focus on its strength. As mentioned, our data collection controls forthe policy area (and hence indirectly for the complexity of the issue) and the leg-islative rule (QMV and consultation). Inter-correlation across independent vari-ables were tested for, so that we can feel confident about the absence perfectcollinearity across control variables.15

As we can see in Table 2, the institutional changes (the introduction of theComitology Decision in July 1999 and the signature of the AmsterdamTreaty in December 2007) have the most significant influence on delegationto management and regulatory committee. The introduction of the ComitologyDecision in 1999 results in a 370 per cent increase in odds of delegation (ceterisparibus). Moreover, this measurement is statistically significant at the 0.01 level

Table 2 Binary logistic regression for delegation to management or regulatorycommittee in the Commission proposal (article 43)

Exp(B) (S.E.) Sig.

After Comitology Decision 4.76∗∗∗ (0.38) 0.00Signature Lisbon Treaty 4.90∗∗∗ (0.54) 0.00Directive 4.18∗∗∗ (0.40) 0.00Number of recitals 0.99 (0.01) 0.30Number of member states 1.00 (0.03) 0.95Yearly workload 0.96∗ (0.02) 0.07First year of Commission term 0.59 (0.51) 0.30Amendments 0.99 (0.01) 0.22Constant 0.80 (0.82) 0.79

Nagelkerke R2 0.29N 333

Note: ∗∗∗ p , 0.01; ∗∗ p , 0.05; ∗ p , 0.1.

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– which shows the consistency of the correlation in the population. In view ofthe above findings, we consider H1 to be confirmed.

With regard to the effect of the signature of the Lisbon Treaty, the fact that aproposal is passed after the signature of the Lisbon Treaty increases the odds ofdelegation almost five times. This is in line with what we found for anotherTreaty (i.e., the Amsterdam Treaty) in another policy field (environment)(Heritier and Moury 2011).

Table 2 also shows that proposals for a directives are, on average, more thanfour times more likely to include delegation to management or regulatory com-mittee (Exp(B) ¼ 4.18, significance ¼ 0.01). This result is surprising, sincedirectives allow member states to choose the instruments for implementingthe legislative act. We could therefore have expected to find less delegation inthe case of proposals for directives. An explanation for this counter-intuitivefinding might be that, generally speaking, directives are politically more impor-tant and, as a result, the Commission may have anticipated the member states’increased difficulty to agree on them and, therefore, their willingness to acceptdelegation.

Quite surprisingly, the proxy for complexity, i.e., the number of recitals, doesnot increase the odds of delegation in the Commission proposal.16 The impactof the yearly workload is significant, but also very small and negative rather thanpositive as we might have expected. Finally, neither the number of memberstates,17 the beginning of the Commission terms, the percentage of paragraphsamended nor the year seem to influence the propensity of the Commission topropose delegation18 of legislative powers to itself.

Figure 1 illustrates the above-mentioned findings. It shows the developmentof Commission proposals delegating to management and regulatory commit-tees (out of all proposals) based on Article 45 (agriculture, QMV, consul-tation) in the periods before and after the adoption of the ComitologyDecision in 1999.

While the Commission, indeed, seems to have been increasingly willing topropose delegation since 1993, we observe a very strong increase in the percen-tage of delegation proposals from 1998 to 1999 (+45 per cent), which gradu-ally decreased until 2002 (to a level which remains nevertheless higher thanbefore 1999). From then, the proportion of delegation proposals graduallyincreases again up to a spectacular 81 per cent in 2008, i.e., in the year followingthe signature of the Lisbon Treaty and preceding its entry into force.

What emerges from Figure 1 is the Commission’s clear ‘enthusiasm’ todelegate to management and regulatory committees in 1999, immediatelyafter the introduction of the Comitology Decision. A Commission officialexplains this ‘enthusiasm’ by the fact that, in the period immediately follow-ing a change of a rule, the choice of a particular procedure is often more‘political’ (in the sense of fighting for power) than ‘legal’ (in the sense offinding which committees are legally appropriate). After a while the ‘legal’arguments gain importance again, albeit without cancelling the politicalmotivations:

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Just after the comitology change of 1999, the debate about which procedure tochoose was mainly political, not legal, in that the choice between procedureswas based on the wish of each actor involved to maximize its institutionalpower. After a while, we managed to depoliticize debate, so that the battlefor power was played down to some extent to the benefit of legality.19

For testing H2, we use a multinominal logistic regression. This analysis allowsfor a reference category (no delegation) to be compared with three other cat-egories (delegation to an advisory, management and regulatory committee).For the 333 Commission proposals, 16 (5 per cent) delegate to an advisory pro-cedure, 87 (26 per cent) to a management procedure and 51 (15 per cent) to aregulatory procedure. Table 3 confirms that the introduction of the ComitologyDecision in July 1999 has a significant influence on delegation to managementand regulatory committee, and shows that it has no impact on delegation toadvisory committee.20 As expected, the introduction of the ComitologyDecision increases the odds of delegation to a regulatory committee to mucha greater extent than it increases the odds of delegation to a management com-mittee (by 8.6 versus by 3.9 respectively). This is consistent with our expectationthat the Commission sometimes anticipates the member states’ resistance toincreased delegation to management committee and thus more frequently pro-poses regulatory committees for measures that could alternatively be passed bylegislation.

Figure 1 Frequency of Commission proposals delegating implementing power to man-agement and regulatory committee and percentage of Commission proposals delegat-ing implementing power to management and regulatory committees, N ¼ 395proposals

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Table 3 Factors affecting the use of the regulatory committee in the Commission proposal (article 43, reference: non delegation)

Advisory Management Regulatory

Exp (B) (S.E.) Sig. Exp (B) (S.E.) Sig. Exp (B) (S.E.) Sig.

Intercept (1.76) 0.26 (0.94) 0.23 (1.35) 0.00After Comitology Decision 1.11 (0.85) 0.90 3.91∗∗∗ (0.43) 0.00 8.64∗∗∗ (0.74) 0.00Signature Lisbon Treaty 1.27 (1.35) 0.86 5.48∗∗∗ (0.61) 0.01 2.49 (0.66) 0.17Number of member states 1.00 (0.08) 0.99 0.96 (0.04) 0.23 1.05 (0.05) 0.34Directive 8.96∗∗∗ (0.65) 0.00 3.45∗∗ (0.51) 0.02 11.96∗∗∗ (0.53) 0.00Number of recitals 0.10 (0.02) 0.86 0.97 (0.02) 0.18 0.10 (0.01) 0.78Yearly workload 0.99 (0.04) 0.84 0.96∗∗ (0.02) 0.05 0.10 (0.03) 0.93Amendments 0.99 (0.01) 0.32 0.99∗∗ (0.01) 0.03 1.00 (0.01) 0.70N 16 87 51

Nagelkerke R2 0.34N 335

Notes: The reference category is: non delegation. ∗∗∗ p , 0.01; ∗∗ p, 0.05; ∗ p, 0.1.

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Interestingly, Table 3 also shows that the type of proposal (directives ratherthan regulation) is a significant determinant of delegation in the proposal forall three categories.

In H3, we turn to the Council preferences and ask whether the Councilwould oppose the attempts of the Commission to delegate to a larger extent.We use a binary logistic regression to check whether the 1999 ComitologyDecision affects the Council’s propensity to pass a proposal delegating to man-agement and regulatory committees. We consider all Commission proposalsbased on Article 43 delegating either to a regulatory or a management commit-tee.21 The dependent variable is a dummy taking the value of 1 when theCouncil passes the proposal without removing the delegation clause and 0otherwise. As mentioned above, the proposal is codified as being rejectedwhen the Council passes the delegation proposals but removes the clause allow-ing for delegation.22 Hence, while the two preceding regression tables examinethe variables influencing the odds that the Commission will propose delegation,Table 4 looks at the odds of the Council passing these delegation proposals.

In accordance with earlier choices, the yearly workload of the AgricultureCouncil, the number of member states, the nature of the proposal as a directiveand the number of recitals were inserted in the regression as control variables. Inmodel 1, we merge the management and regulatory committee; and in model 2we introduce another dummy variable to observe whether the Council behaveddifferently if the Commission proposal delegated to a regulatory committee.

Table 4 shows that the introduction of the 1999 Comitology Decision reducesthe propensity of the Council to pass delegating proposals to management orregulatory committees; but that this effect is not convincing in terms of statisticalsignificance. This result does not enable us to confirm H3, and shows that the

Table 4 Odds of the Council adopting a proposal delegating to a management or to aregulatory committee

Model 1 Model 2

Exp(B) SE Sig. Exp(B) SE Sig.

After comitology Decision 0.30 (1.35) 0.37 0.29 (1.37) 0.37Workload per year 1.05 (0.04) 0.29 1.04 (0.04) 0.31Number of member states 1.13∗∗ (0.06) 0.04 1.13∗∗ (0.06) 0.04Directive 0.75 (0.78) 0.72 0.60 (0.84) 0.55Number of recitals 1.35 (0.26) 0.24 1.37 (0.27) 0.24Regulatory 1.55 (0.60) 0.47Constant 0.23 (1.93) 0.45 0.23 (1.96) 0.45

Nagelkerke R2 0.21 0.22N 136 136

Note: ∗∗∗ p , 0 .01; ∗∗ p , 0.05; ∗ p , 0.1.

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effect of the change in the institutional rule on actors’ willingness to delegate sig-nificantly holds for the Commission only. This could be explained by two factors.First, if the Council has a strong preference for a policy change and/or is undertime constraints to adopt a specific legislative item (bearing unanimity require-ments in mind),23 it may prefer not to oppose the Commission on the questionof comitology. Second, while the gain of power induced by the comitologychange is obvious for the Commission, the loss of power for the Council is notso straightforward. Indeed, it is not the ministers who are members of the com-mittees, but experts who represent the member states. In other words, the Coun-cil’s loss of influence is more indirect than the Commission’s gain.

With regard to the control variables, we observe that only one of them signifi-cantly determines the probability of the Council passing a delegation proposal:the number of member states; this decreases the probability that a delegation pro-posals is passed by the Council. In other words, the more the member statesthere are in the Council, the more likely it is to pass Commission proposals dele-gating to management or regulatory committees. This supports the theoreticalargument that a divided Council with many members would tend to delegatemore to avoid deadlocks on controversial issues.

6. CONCLUSION

Each of the various comitology procedures entailed a different distribution of com-petences between member states and the Commission. In this article, we developedan institutionalist power-based bargaining argument of why the Commission wouldbe increasingly willing to delegate decision-making power to management and regu-latory committees after 1999, and why the contrary was to be expected for theCouncil. On the assumption that actors seek to maximize their institutionalpower in order to increase their influence over policy outcomes, we expected thatthe gain in competences in the regulatory and management committees vis-a-visthe Council would induce the Commission to increasingly propose delegation tothese committees. Conversely, we also expected that the Council would be lessinclined to delegate to these committees after July 1999.

Our results clearly support our hypothesis for the Commission: controllingfor alternative explanations, the Commission is more than four times morelikely to delegate to management or regulatory committees after the revisionof the 1999 Comitology Decision. Moreover, the effect of the revision of thisrule is twice as strong for the regulatory committees. This confirms our expec-tation that the Commission sometimes strategically refrains from delegating tomanagement committees measures which could alternatively be adoptedthrough legislation. We also show that the Commission was more willing torely on extensive delegation once it knew that codecision would be introduced.The increase in delegation in the two years following the signature of the LisbonTreaty indicates that the Commission anticipated its loss of power to the EP,and rushed to propose delegation as much as possible before the effective intro-duction of co-decision.

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Another relevant finding is that the level of conflict between Commission andCouncil (measured by the proportion of proposals amended by the Council) orin the Council (measured by the number of member states) do not seem toinfluence delegation in the Commission proposal – either because the Commis-sion is not able to anticipate it or because the relationship between conflict anddelegation, as claimed by Thomson and Torenvlied (2010) in their study of del-egation (measured there as the number of provisions granting discretionarypowers to the Commission or to member states in the European Union) isnot straightforward.

Another crucial finding is the fact that proposals for directives in particular aremore likely to include delegation (to all three committees). Future researchshould investigate this relationship which is counterintuitive, since directivesallow member states (a second agent) to choose the instruments for implement-ing the legislative act. What this finding suggests is that delegation to memberstates converge with, rather than replace, delegation to the Commission.

Finally, contrary to our expectations, the Council did not increasingly opposedelegation after 1999. What appears to matter to the Council’s decision toaccept or alternatively to oppose delegation as proposed by the Commission isthe number of its members – hence, by contrast, bringing some support to theidea that diversity and conflict influence delegation. This difference could beaccounted for by the fact that the member states – and not the Council – aredirectly represented in the comitology committees (hence making the loss of influ-ence in the Council after a comitology reform more indirect). Given that theCouncil did not oppose the extensive delegation proposed by the Commission,the change in Commission preferences clearly influences the legislative outcomes.Although our results are based on a single policy area and focus on a more specifictype of delegation, they show that future scholars interested in delegation shouldinclude the institutional rules and the type of legislative act in their models if theywant to fully capture the dynamics behind the Legislator’s decision to delegate.

Biographical notes: Catherine Moury is Assistant Professor at ISCTE-IUL andGuest Professor at FCHS-Nova, Portugal. Adrienne Heritier holds a Joint ChairRSCAS/Political and Social Sciences Department at EUI, Italy.

Address for correspondence: Catherine Moury, Lisbon University Institute,Av. das Forcas Armadas, Ed. ISCTE, 1649-026 Lisboa, Portugal. email: Cathe-rine.Moury@iscte.pt/ Adrienne Heritier, Robert Schuman Centre for AdvancedStudies, European University Institute, Via delle Fontanelle 19, I-50014 SanDomenico di Fiesole (FI), Italy. email: Adrienne.Heritier@eui.eu

ACKNOWLEDGMENTS

We are very grateful to Fabio Franchino and to the anonymous reviewers fortheir very constructive comments on this article.

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NOTES

1 ECJ, Case 25/70 Koster 1970.2 Comitology Decision 2006/512/EC.3 Delegated powers-control mechanisms ¼ discretion.4 https://manifesto-project.wzb.eu5 This does not preclude that actors may be faced with a conflict between the main-

tenance of institutional power on the one hand and other considerations (such asefficiency) on the other. What we argue is that actors would, ceteris paribus,prefer to have important rather than limited competences in the decision-makingprocedure.

6 The legislation can also allow the Commission to take legislative decisions withoutcommittees of member states, but it happens very rarely.

7 Proposal for a Council Decision laying down the procedures for the exercise of imple-menting powers conferred on the Commission (98/C 279/05) COM(1998) 380final – 98/0219(CNS).

8 The likely objection of the Council to the advisory and management committeesmay be derived from the Council’s Comitology Decision which states that regulat-ory committees should be used in the case of ‘measures of general scope designed toapply essential provisions of basic instruments’ and to the updating or adaptation of‘certain non-essential provisions of the instrument’.

9 The Council removes the delegating clause in 9 delegation proposals and adds onein 12 Commission proposals.

10 11 times out of the 333 proposals, or less than 3 per cent.11 That is, the number of paragraphs starting with ‘whereas’.12 From our database we calculated that the average time for passing delegation based

on Article 43 was 1 year and 6 months. We therefore examined whether proposalsmade by the Commission up to June 2008 were passed or not passed by the Counciluntil December 2009. If not, we assigned the value of 100.

13 No proposals were made by the resigning Santer Commission (March 1999 to Sep-tember 1999).

14 The same reasoning could not be made about the Constitutional Treaty, which hadbeen rejected by a referendum in France and in the Netherlands only six monthsafter its signature.

15 The yearly workload and the first year of the Commission term are not very highlycorrelated (Pearson R ¼ –0.326) and hence could be inserted together in theregression without violating the assumptions.

16 We also run the regression including the number of words rather than the numberof recitals. The results of all coefficients are very similar, and the Exp (B) of thenumber of one hundred words is equal to 1.003, and is significant at the 0.01level. That is, the addition of 100 words increases the odds of delegation by only0.3 per cent. This shows a very small – but extremely consistent – effect of thelength of legislation on delegation (annex available at https://sites.google.com/site/catherinemouryphd/publications/annexes-journal-article/jepp).

17 The results are almost identical when the variable ‘Number of Member States’ isreplaced by a dummy variable taking the value of 0 before the enlargement to the25 new member states and 1 afterwards.

18 We also introduced the year as a control variable to check for an effect of a meretemporal trend on delegation. Doing so, the Exp(B) coefficient of the variable‘Introduction of Comitology Decision’ decreases to 3.5 (rather than 4.7), butstays significant at the 0.05 level (annex available at https://sites.google.com/site/catherinemouryphd/publications/annexes-journal-article/jepp).

19 Interview with an official of the Commission Legal Service, January 2011.

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20 The results for the advisory committee should be taken with some caution given thelimited number of cases (16).

21 And is then lower than in Table 1 and 2, where the population was all Commissionproposals.

22 From our database we calculated that average time for passing delegation based onArticle 43 was 1 year and 6 months. We therefore examined whether proposalsmade by the Commission up to June 2008 were passed or not passed by theCouncil until December 2009.

23 Under the legislative procedure, unanimity is required when the Council amendsthe proposal in a way that is not supported by the Commission.

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