The story of Tonio Borg’s confirmation as the next Maltese Commissioner for Health and Consumer Protection keeps getting stranger. In response to the objections in the S&D group, the Parliament has listed a series of commitments that Mr. Borg is to make in order to be confirmed. They are:
- The delivery of the legislative proposal on tobacco products by January 2013;
- The adoption of legislative proposals on animal cloning and novel food by mid-2013;
- The full respect of the March 2013 deadline for the ban of animal testing for cosmetics;
- Better enforcement of EU law on animal transport;
- Full respect of the EU Charter on Fundamental rights, in particular of Article 21, as well as of EU anti-discrimination legislation and case-law;
- Recognising the innate dignity of all citizens of the EU, regardless of their sexual orientations, actively working to address health inequalities and to acting against stigmatisation of people with HIV and AIDS;
- Actively supporting EU policies with regard to women’s rights.
You don’t have to be a Commission (or Council) insider in order to feel that many of these commitments would seriously infringe on the Commission’s prerogatives. After all, last I checked, it is the Commission and the Commission alone that decides whether a proposal will be made, and if so what is in it. The same goes for a proposal to amend existing legislation. If the Commission thinks the deadline for the ban on animal testing for cosmetics should be extended, it would be unconscionable for it to refrain from making such a proposal just because one of the members of the College promised the Parliament that they wouldn’t. Similarly, the Commission is supposed to decide on its own enforcement priorities, given that it only has so many lawyers and so many other fonctionnaires. Only the last three commitments are of a more general political/ideological nature, and Mr. Borg should have no difficulty making them.
That said, I argued in my earlier post on Mr. Borg that it is entirely legitimate for the Parliament to leverage its power over the appointment in order to win power elsewhere. I have to say, this is not quite what I imagined, but it might nonetheless be legitimate along the same lines. I think the best way to consider this is to look at the first three commitments first, and then at the fourth.
A commitment by the Commission to publish a proposal – or not to – by a certain date seems quite legitimate as part of a larger negotiating deal with the Parliament. The Commission may make a proposal, but it does not have to, and as such I see no reason why the exercise of this power could not be made part of a wider political bargain. In this case, however, I am unsure what the Parliament is looking for. After all, it is Mr. Borg who is asked to make these commitments, not the Commission as a whole, and as we have seen with the women’s quota proposal recently, the relevant commissioner alone is not in charge of making proposals. If a tobacco products proposal has insufficient support in the College of Commissioners, for example because it fails the criterion of subsidiarity, there is not much Mr. Borg can do. At best he can promise the Parliament that he will do his best to get such a proposal adopted. The reverse is, of course, not true: it is difficult to see how the College can force him to draft a proposal that he does not want.
Enforcement, on the other hand, is more problematic. Much as this, too, is a matter of considerable discretion, I think any attempt by the Parliament to control it is seriously misguided. Given that enforcement is a matter of deciding what to do with scarce resources, enforcement priorities have to be decided all at once, or at least all at once for each Directorate-General. If the Parliament thinks the law on animal transports should be enforced better, it should also say which area of the law should be supervised less. In the absence of an overarching Parliamentary approach to enforcement, it should leave these kinds of decisions to the Commission, which is in fact how it is done in most Member States. While normal Parliaments have the right of initiative, they do not tend to have the power to commandeer government resources to improve enforcement of certain laws except through the budgeting process, when the trade-offs involved are made clear to everyone.
So if the Parliament wants to maintain commitment four, it should be clear that it is to be understood as a soft, political commitment only. If Mr. Borg says that yes, he really does think that animal welfare during transport is important, the Parliament should accept this. To go beyond such a hand-waving political statement would be unwise, and to the detriment of all, including Europe’s animals.