Europe Daily Bulletin No. 12852

14 December 2021
Contents Publication in full By article 33 / 33
Kiosk / Kiosk
No. 050



With “Lobbyiste”, Daniel Guéguen, who has a great deal of experience as one, having worked for the European Committee of Sugar Manufacturers and held the post of Secretary General at COPA-COGECA before becoming a consultant and lecturer at the College of Europe, takes us on a journey into the European microcosm of lobbying, together with an analysis of the institutions’ slide into bureaucracy and the evolution of the profession of lobbying, which is often considered dubious despite being useful and, to an extent, necessary in a system that is becoming increasingly opaque. It is also the history of a life – the life of an ardent Europhile who is enraged by the current process of European deconstruction.


The author, who takes the view that the construction phase stopped with the Treaty of Maastricht in 1992 and the single market, which came about one year later, argues that the institutions have become steadily more bound up in red tape since then. “The system is failing seriously”, he writes, adding: “it is incomprehensible to the many as well as to the few. To the actors in Europe, businesspeople, citizens, our Brussels horizon is that of an infernal labyrinth of committees, expert groups and dialogues, each one more opaque than the last. The decision-making processes, once so simple, are now bogged down in complex procedures that are just black boxes with endless exemptions and derogations. The question we should be asking is not whether the system is democratic, but how ademocratic or even anti-democratic it has become” (our translation throughout).


There is nothing good in the Treaty of Lisbon”, Guégen states, not unreasonably, criticising the following: (1) the fact that there is still one Commissioner for each country, which is to the detriment of collegiality, as the “excessive number of commissioners has killed off any debate within the Commission, whose decisions are basically made by written procedure”; (2) the good but misguided idea of appointing a High Representative for Foreign Affairs and Security Policy, “with an administration that is strong in number but weak in influence”, a position “built on sand, as the EU lacks an overall diplomatic vision and common geopolitical strategy”; (3) “the upgrading of the European Council, originally just a club bringing together heads of state or government, to the status of an institution in its own right”, with the consequence of even less transparency upstream of decision-making and the “appropriation of major topical subjects and crisis management by the European Council”, which downgrades the Commission to the rank of “just the permanent secretariat of the European Council”; (4) the permanent Presidency of the European Council, which makes its structure even more complex and even harder for citizens to penetrate.


Today, European laws are created behind closed doors in closed committees that go by the name of trialogues; they are then adopted without debate by the Council of Ministers and the European Parliament (…). Legislators vote on the laws, but it can no longer be said that they legislate”, Guéguen observes, stressing that with the introduction of delegated acts, which give the Commission a considerable degree of latitude, European laws have become framework laws that go no further than set out general principles. He considers that the “final stage of dominant and authoritarian bureaucracy” was reached with the “taxonomy” regulation of June 2020, which entrusts the Commission to “adopt seven delegated acts to determine whether an activity is sustainable or likely to create environmental damage”.


It is said that the majority of Europeans are Eurosceptics. That is not the impression I get. Our fellow citizens are broadly pro-European, but they expect a different, less bureaucratic form of community that listens to them and is also more democratic”, states Guéguen, who categorises himself as a “critical pro-European”, in other words the kind of person “who believes firmly [in the EU], but is disappointed, disillusioned, dissatisfied with how the European Union works”. To clarify his position: “I believe strongly that we need more Europe and not less Europe. When I say ‘more Europe’, that means a Europe that meets the three criteria required for the plurality of a single currency, which are: a completed single market, governance on a federally-inspired model and a feeling of belonging to a common citizenship”.


Over the course of the book, the author continues his critical analysis of the state of the European Union, alternating with his deep dive into the world of lobbying which, as he quite rightly points out, has since the creation of the European Economic Community been a “component of the Community mechanisms”, aiming to identify the general interest on the basis of the positions voiced by industry and the broadest possible range of interest groups from civil society. Although he takes the view that NGOs and civil society organisations are broadly speaking “highly influential”, he criticises the inefficiency of professional associations, bogged down in bureaucracy and “always looking for the lowest common denominator”.


The former Secretary General of COPA-COGECA, the umbrella organisation for agricultural unions and cooperatives, laments the progressive infiltration of the GATT into European agriculture ever since 1962 and way it has been sacrificed on the altar of free trade. In this context, the CAP (Common Agriculture Policy), which has made European farmers into benefits recipients, is simply unreformable. The author dwells at length on the 1962 agreement, which gives the United States the option to export its soya meal to Europe, with disastrous consequences for the environment, without anybody thinking to renegotiate the concession. He also refers to a mass fraud that allowed COPA to be paid the equivalent in Belgian francs of five million euros to the detriment of the Community budget for a study into milk, on the basis of a call for tenders from 1988 concerning the pan-European programme on nutrition, without receiving any sanctions.


Arguing on the basis of many specific cases, the author shows how lobbying succeeds in influencing debates or filtering out pointless Commission initiatives, such as the one aiming to allow red and white wines to be mixed together under the denomination “rosé wine”. He also tells the tale of the savage battle of more than three years against the Commission’s obstinate refusal to authorise the medicine Orphacol, even though the European Medicines Agency had given its favourable opinion to the marketing of this drug, used in the treatment of a potentially lethal orphan disease.


Although a figure of 20,000 lobbyists is often put forward, Guéguen estimates that realistically, there are only somewhere between 250 and 500 influential lobbyists in Brussels. This does not prevent him from making the case for the “obligatory regulation” of the profession of lobbyist and the “constitution of a professional order along the lines of the system for lawyers”. The author regrets the fact that European civil servants sometimes move to the private sector and considers that the current rules are not strict enough. “It is not right that Michel Petite, legal director of the European Commission, one of its most important posts, moved overnight to the major international law firm Clifford Chance, including for legal services. It is also not right to see Manuel Barroso recruited by Goldman Sachs, whose ethical reputation is not always 100%”, he writes, adding that it is believed that this “revolving door” is passed through by some 300 European civil servants every year. He also criticises OLAF for its inefficiency, arguing that it is “too dependent on the Commission” in the fight against fraud and corruption.


The work ends by consigning the Conference on the Future of Europe, which is due to end under the French Presidency of the Council in the first half of 2022, to its grave: “officially, everything works, but in reality, the dossier is at deadlock, because member states are not even considering treaty reform before 2024, to coincide with the next European elections. Even worse, the citizens are being sold a vision of major reforms pretending to involve them through panels, events, digital platform. It’s all smoke and mirrors or, to put it another way, making a rod for their own back, because the citizens will ask for a parliamentary right of initiative, a more federalist union, less opaque and more transparent governance, all things that it is impossible to give them because institutional reform requires a unanimous decision of the Twenty-Seven”.


Notwithstanding the above, Guéguen intends to remain optimistic. This is unquestionably, and avoiding any naïveté, the best way to approach 2022. (Olivier Jehin)


Daniel Guéguen. Lobbyiste – Révélations sur le labyrinthe européen (available in French only. Anthémis. ISBN: 978-2-8072-0814-8. 232 pages. €25,00


L’état de droit supranational comme principe de l’espace public européen


In this essay, Tomasz Koncewicz, the Head of the Department of European Law and Legal Studies of the University of Gdansk, Poland, makes the observation that the “so-called reform of the Polish legal system has triggered a paradigm shift in the case-law of the European Court of Justice” (our translation throughout). However, in response to matters brought before the Polish courts and ruling on infringement procedures brought by the Commission, the Court has remained faithful to its mission of “guaranteeing ‘supranational legality’ in the field of the application and interpretation of Community law”, the author explains.


The case of Poland’s democratic regression holds a particular position in the annals of the European Union. The adoption of the constitution in Poland undermined the very idea of a Europe linked by the (allegedly) common values of the rule of law, democracy and human rights and implicitly by liberalism, tolerance, a sense of community and an end to constitutionalism”, writes Koncewicz, adding: “the Polish counter-revolution has replaced these founding principles with a zero-sum policy, a vision of ‘us against them’ and a competing constitutional narrative of fundamental differences of opinion on values. It proclaimed that ‘we, the European peoples’ are not prepared to live together in a pluralist constitutional regime. The points of difference have started to outnumber the things we have in common”.


The author explains that “constitutional capture”, a concept defined by German historian Jan-Werner Müller (Princeton) as aiming to “systematically weaken the system of checks and balances and, in extreme cases, to make changes of power extremely difficult”, is “travelling in time and space”, with authoritarian leaders in Turkey, Poland and Hungary all learning from each other. “Constitutional capture” is a more serious threat to the existence and functioning of the EU than the withdrawal of one of its member states and the European Commission has failed to learn lessons from the case of Hungary, Koncewicz laments, observing that “the only way to foil ‘constitutional capture’ (…) is to act preventatively, before the constitution is fully under control”. “Waiting on the sidelines, holding discussions with those responsible and hoping for a change in attitude on their part simply emboldens and consolidates the regime. ‘Constitutional capture’ as a process takes time. It is therefore the time factor that is of central importance in our response to it. If we are to counter this dominance whilst it is underway, you must act from the very beginning and not afterwards. The regime is aware of this and is prepared to do anything to play for time to embed its control and make any change difficult”, the author explains. He derives from this the brutal observation that “the failure in the application of European legislation in Hungary, and now in Poland, is quite clear: the EU has always been late to events on the ground and becomes lost in a democracy of infinite and ineffective indignation. Member states in which mistrust and fear have come about are called upon to take part in the trial of one of their colleagues, himself involved in this process of democratic backsliding. The institutions of Europe are faced with dangers they were never prepared for and then contributed to with their own incompetence and lack of political will”.


While he considers that “in its ability to break the political deadlock by offering alternative options, the Court of Justice must continue to proceed with caution”, the author takes the view that the Court has resources at its disposal to open up the door to new proceedings by identifying “essential characteristics of EU law”, to borrow from the terminology of its case-law, which “must today go beyond the traditional ‘first principles’ of supremacy and direct effect to include the rule of law, the separation of powers, the independence of the judiciary and the executory nature of these principles as an integral part of the legal system of the EU”. (OJ)


Tomasz Tadeusz Koncewicz. L’état de droit supranational comme premier principe de l’espace public européen – Une union toujours plus étroite entre les peuples d’Europe mise à l’épreuve? (Available in French only) Fondation Jean Monnet, collection Débats et Documents no. 22, October 2021. 92 pages. The essay can be downloaded free of charge from the Foundation’s website: http://www.jean-monnet.ch


Taking Stock of the Space Weaponisation Issue


In this e-note published by the Royal Higher Institute for Defence, Alain De Neve starts by pointing out that it has become “impossible to imagine any military planning – no matter its scale – without the contribution of space in the field of imagery, navigation, early warning or strategic and tactical communication”. He considers that trials of anti-satellite weapons (ASAT) conducted by Russia in low orbit on 15 November of this year, during which a missile of the terrestrial anti-satellite system Nudol was used to destroy a Russian satellite that had been taken out of use, confirms not only the existence, but also the persistence of a risk of the destabilisation of space by weaponising it (not, as De Neve stresses, to be confused with simple militarisation, which basically covers the use of space for terrestrial military purposes). With these events, Russia is showing that it does not intend to be outpaced, while the ASAT trials conducted by China in 2007 had already convinced the United States to do the same thing the following year. The author stresses that these activities are risky, due both to the increase in debris and the possibility of collision cascading, first theorised about in 1978 by Kessler and Cour-Palais, which could trigger conflict between the space powers. He also reiterates that the Outer Space Treaty of 1967 prohibits only the placement of nuclear weapons, with conventional weaponry banned only on celestial bodies and the moon. In the current geopolitical context, the author doubts that it will be possible to establish a truly international regime for controls on the use of weaponry in space activities. (OJ)


Alain De Neve. Taking Stock of the Space Weaponisation Issue. Royal Higher Institute for Defence, e-note 34, December 2021. 8 pages. The e-note can be downloaded free of charge from the Institute’s websitehttp://www.defence-institute.be