Daniel Gueguen

In Brussels, files often advance under the radar. In the past, it was enough to pick up the phone, call the policy officer or head of unit to find out where things were and what steps came next. Taxonomy is nothing like this. Not only are the origins, motivations and consequences of the basic act and draft delegated act obscure – and therefore concerning – but the manner in which this file has been handled diverges entirely from the rules of good governance required under Better Regulation. Given that no improvements are being made, we are taking the initiative by writing this joint article, whose title could easily have been “Enough is enough!”

We, Thierry de L’Escaille and Daniel Guéguen, who between us share decades of experience in European affairs, have never witnessed such bureaucratic excess before. Truth be told, we do not know where to start with this dossier. Who is responsible for it? DG FISMA? DG ENV? DG ENER? All of them in part? And who holds the levers for finalising the draft delegated act? Mrs McGuinness? Executive Vice-President Dombrovskis? Who should be approached to obtain some kind of precise response to a precise question? No one knows! The Commission wants to stay the course, but in the absence of any real interlocutor it is as if one were speaking into a void. This is why the Special Committee on Agriculture (SCA), an official body under the authority of COREPER I, found itself shocked when, having invited a representative of DG FISMA to present the Taxonomy file on 11th January 2021, it was met with a refusal and an empty chair!

 

No impact assessment, no translations, and a delegated act with “essential” elements

Everything in this file has been done the exact opposite of how it should be. We are not calling into question the need for Taxonomy per se, but how could they undertake such an initiative without any assessment beyond financial matters? Nor was there any impact assessment for the draft delegated act, currently under preparation, even though it is the cornerstone of the scheme.

In the absence of any prior analysis, we are confronted with a mountain of paper. If the basic act is “only” 40 pages long, the draft delegated act comes to 500 pages including its two annexes. Every aspect here can be criticised. First of all, why a delegated act? Under Article 290 of the Treaty, a delegated act can deal with “non-essential elements.” Does building a tool to achieve carbon neutrality not qualify as “essential”? The co-legislators, likely drowning in the ultra-bureaucratic detail, decided to provide for implementing measures – in a way, getting rid of the problem.

Secondly, in addition to the basic regulation, all of the documents we speak of exist only in English. No translation is available. Once adopted by the Commission, the delegated act will be translated for publication in the Official Journal, but probably not the technical annexes which constitute the core of the mechanism and are intended to apply to all European businesses as of 1st January 2022!

 

Counter-powers becoming handmaidens of power!

Faced with the Commission’s power grab on delegated acts (which it both proposes and adopts), Better Regulation helped create comitology committees that don’t vote, also known as “Expert groups”, composed of Member State representatives and chaired by the Commission. The merit of these groups is that they offer Member States the possibility of obtaining the text of the draft delegated act and discussing it. In the specific case of Taxonomy, the Commission for a long time refused to provide its draft to the Member States, and did so only on the eve of the public consultation. We have no idea when the Expert group will meet next, nor any idea of its work plan.

In a further denial of democracy, the Commission created an advisory committee comprising stakeholders. Once known as the Technical Expert Group, it is now called the “Platform on Sustainable Finance.” But the Commission has effectively clipped the wings of this platform by imposing upon its members – who include representatives of EU trade associations and NGOs – obligations of confidentiality. In other words, the counter-power has become a handmaiden of power!

 

A complete absence of scientific rigour; a badly-designed dossier

For an issue of such importance, one might have expected some scientific rigour, but there has been none at all. In recent months we have seen several position papers denouncing myriad technical errors, presenting amendments and suggesting alternatives, e.g. harmonisation of existing standards instead of creating new ones, and taking technological development into account. In over 1,800 replies to the public consultation, industry has reiterated these demands, emphasised the punitive nature of the draft and expressed their incomprehension around measures which seem to contradict the provisions of the CAP, as well as rules on biofuels and transition energies.

But confronted with this situation, the best of the interest representatives find themselves helpless. The recent public speech by the Commissioner in charge, Mrs McGuinness, frankly offered little more than moral support, while the three information seminars organised by the Commission for stakeholders were nothing but a classic example of a “tick-the-box exercise.” There was a need to inform, and we did it!

The necessity of this delegated act is not so strong that it requires adoption by mid-April. There are two options: one, continue on the present path and create long-lasting disruption between Institutions, Member States and stakeholders, as a potential veto action on the first draft delegated act is starting to loom. Let’s not forget that a number of other delegated acts on Taxonomy are under preparation. And let’s also recall that 12 months must elapse between the adoption of the first delegated act and its entry into force on 1st January 2022, a target now impossible to achieve and an extra source of opposition, frustration and incomprehension.

The second option, and in our view the right one, is to take some time and bring a badly-designed dossier back to square one, with a view to transforming it into a tool of constructive dialogue between public authorities, economic sectors and citizen-consumers.

If there is no urgency to take a decision, there is certainly an urgency to change course!

 

Thierry de l’Escaille thierry.delescaille@elo.org – Secretary General – European Landowners Organisation

Daniel Guéguen daniel@gueguen.info – Taxonomy Alliance – Professor at the College of Europe

 

March 2021

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