European Parliament v European Commission

‘From Fig Leaf to Co-Legislature’[1]

Introduction

This article will explain how the European Parliament (hereafter “the EP”) evolved from a consultative assembly to one of the key institutions of the European Union (hereafter “the EU”), and discuss its legislative powers over the Commission.

 Evolution of the European Parliament

The EP began as a mere assembly in 1951.[2] This altered in 1979, with the implementation of universal suffrage and creation of direct elections.[3] Roland Bieber argued that now the EP represented democracy and legitimacy for the then European Community,[4] (hereafter “the EC”) as through direct elections, members were responsible to the electorate. Overall, the EP’s inherent democratic legitimacy provided a tenable reason for its evolution into a dominant law-making institution. 

 This was far from simple. Corbett averred that the EP was still inferior to the Council of Ministers and the Commission,[5] especially since only with the Council’s approval could law be implemented. Paul Craig contended that this caused a “democratic deficit”, as the sole elected body had no real power.[6] For instance, electoral voters had no direct way to shape the legislative agenda as they could not vote out the Council or Commission, particularly if they felt electorally dissatisfied.[7] This signifies the “democratic deficit” as neither the EP nor its electoral voters had influence. Joseph Weiler stated that the EP’s control over Council’s decisions were inadequate checks from a democratic standpoint,[8] inferring that the EP was treated as a mere assembly, whose opinions were non-enforceable.

 The ruling in Isoglucose[9] attempted to resolve this, as EC legislation was struck down before the EP had pronounced its opinion on it. This suggests that the EP was starting to evolve into a powerful legislative organ, as Isoglucose implied that its opinions were now important and respected. Moreover, Corbett said if the Commission did not ask for an assurance, the EP could abstain from providing its opinion, thereafter a compromise would need to be sought before the Council could proceed.[10] This bargaining power illustrated that the EP was becoming a prominent law-making institution, as it now could create legislative compromises. However, its legislative power and influence depended largely on the Commission’s preferences,[11] meaning its opinion could be ignored if it contradicted the Commission’s interests. Corbett conceded that Isoglucose was restrictive since all the power the EP had to delay was only effective in urgent situations.[12] Therefore, the EP had no initial power over the Commission, affirming there were initial restrictions on the EP’s evolving legislative power.

 Nonetheless, Christine Neuhold purported that the Single Economic Act 1987 (hereafter “the SEA”) bolstered the EP’s influence by formulating a triangle of law-making power between the institutions.[13] The SEA established the cooperation procedure giving the EP another opportunity to review legislation, consequently increasing the inter-institutional dialogue, which made the process more inclusive of its views.[14] Furthermore, the Maastricht Treaty 1993 introduced the co-decision procedure that expanded upon cooperation, enhancing the EP’s legislative role as it now could take part in joint decision-making with the Council.[15] Given this evidence, the SEA was the beginning of the EP’s dramatic shift into a major legislature and sudden seizure of power. 

 After the Lisbon Treaty 2009, co-decision extended to 90 Treaty items (originally 15).[16] This affirms that the EP was evolving into a powerful law-making body, akin to the Council.[17] Co-decision not only incorporated the prior conciliation process[18] but also an option for the EP to reject the Council’s decision after it, which affirms it had become a key institution. For example, Article 314(4) of the Treaty on the Functioning of the EU 2009 (hereafter “the TFEU”) provides that the EP holds equal power with the Council to determine the allocation of the budget.[19] Thus, confirming the EP had evolved into the Council’s equal, and so it was a key institution. The fact that in 2010, the EP rejected the first SWIFT Agreement despite opposition from all EU governments and the Commission affirms this.[20] Additionally co-decision was renamed the ordinary legislative process, which allows the EP to block legislation after the Council adopts it unanimously. This has only been used five times in 1,166 procedures, because it would decrease legitimacy in itself, since other parties would not wish to correspond with the EP if its position is inflexible.[21] Regardless, Damian Chalmers intimated that by threatening to subvert other parties’ aims, parties would have to adhere to the EP’s policy preferences and so it could secure influence for itself to realise its own desired outcomes.[22] It can be inferred that this is a more advanced version of Corbett’s aforementioned bargaining power, thus the EP has progressed in its legislative powers. Ultimately, the EP has become a dominant legislative organ in the EU, but at what cost?

European Parliament v Commission

The EP gained further legislative powers over the Commission to combat the perceived “democratic deficit.” Article 17(2) of the Treaty on the EU 2009 (hereafter “the TEU”) states that EU law may only be adopted via a Commission proposal. This symbolises that the Commission is the actual primary proposer of legislative acts, and so it seems it has all the legislative dominance. This aggravated the “democratic deficit” notion, since it infers that the sole elected EU body has no prominent legislative role. This is further exacerbated by the process of comitology, which occurs when the Council and EP have delegated certain powers of implementation to the Commission.[23] Georg Haibach stated that the Commission uses committees of unelected technocrats and national interest groups to formulate and implement delegated legislation without any parliamentary input.[24] This is contentious because it decreases the EP’s overall democratic legitimacy and legislative competence. Hence, Article 291(3) TFEU provides that the committees’ regulatory measures must be based on a parent instrument adopted under the ordinary legislative procedure, thereby increasing committee transparency. Accountability is increased via Article 290(2), which allows the EP to object through a resolution if it considers the Commission to have acted ultra vires (acting beyond its powers). Given this evidence, the TFEU prevents the ‘by-passing of democracy,’[25] allowing the EP to have increasing legislative competence over the Commission.

Nevertheless, John Peterson submitted that the EP is becoming more institutionally and legally powerful, at the Commission’s expense.[26] Even, Peter Moser concluded that the lack of Commission participation in conciliation allows the EP to alter legislation substantially,[27] reinforcing that the balance of powers has shifted towards the EP. John Sap highlighted that this is not necessarily an adverse shift as now the MS have another opportunity to make their views heard and implemented.[28] At the outset this appears to be a valid reason to further the powers of the EP to prevent “democratic deficit,” though Robert Cooper condemned the EP for a democratic overhaul.[29] Since overall turnouts at elections constitute only 43%, due to a general lack of interest, he advised that national parliaments bring greater legitimacy to the EU rather than the EP.[30] He continued that the “democratic deficit” is in fact illusory as he explains if there was, there would be no elections.[31]This suggests that it is merely a facade to allow the EP to gain more legislative power, which disrupts the triangle of legislative power. Consequently, the autonomy and legislative power of the Commission has minimised, while the EP has gained them. Therefore, perhaps the EU should prevent the EP from expanding its legislative powers before the Commission’s role becomes futile and the EU suffers as a consequence.

Arguably, as the Commission protects national parliaments’ interests[32] legitimacy would be lost if its powers were limited. Under Article 17(1) TEU, the Commission promotes the general interest of the EU and will be autonomous in doing so. Kevin Featherstone concluded that autonomy allows it to be the preferential institution to represent the common European interest,[33] namely the promotion of integration. Therefore, the fact that EP was initially constrained was justified because it was in the European interest for it to be so, especially since the Commission is the conscience of the EU.[34] This ‘conscience’ was illustrated in the 2001 White Paper, when the Commission advocated for the roles of the EU legislative and executive processes to be much clearer.[35] Mainly because, ordinary people felt alienated from the EU process.[36] The White Paper illuminates that the Commission wishes for democracy and further transparency, like the EP. Hence, the EP should not extend its powers over the Commission as they are both aiming to achieve their common aim of integration.[37] Likewise, Brainard Peters supports that the Commission is democratically legitimate, arguing the Commission is inherently politicised, offering a marketplace for the development of ideas and the accommodation of interests.[38] The process is influenced by both public and private parties which leads to an optimal and efficient outcome as it does not need to represent different political interests.[39] Notably, Neuhold discovered that in EP committees, group coordinators not only supplant cohesion and coherence within the committees but also find effective solutions to problems.[40] This would be an apparent counter-argument, meaning there would be little point in maintaining the Commission if the EP already achieves the same outcome. Though she conceded that they cannot mitigate the structural deficits regarding accountability and democratic legitimacy within the multi-level system.[41] This asserts that expanding the EP’s legislative competencies does not solve the “legitimacy deficit.” Instead, the Commission’s powers should expand, since it incorporates both democracy and technocracy, thereby promoting legitimacy.[42] Given this evidence, it would be logical to increase the Commission’s legislative powers as it often leads to more legitimate decision-making,[43] mostly due to its ‘multi level political party activity.’[44] Otherwise, the EU would lose its legitimacy, which becomes conclusive when compared to Peters, Joerges and Neuhold’s conclusions.

As noted above, there needs to be reform between the institutions as legislative power in the triangle is neither shared nor fixed. John Fairhurst emphasised the Commission’s exclusive right of initiation is controversial, because the Commission can debilitate the EP by not proposing legislation, which would cause the EU legislative processes to stop.[45] To counter this, Article 17(8) TEU and Article 234 TFEU provides the EP the right to dismiss the Commission entirely. Stephen Weatherill profferered that this sanction is extreme and indiscriminate,[46] as it would stop the Commission’s work, causing significant delays as time was initially taken to appoint the Commission. Clearly both powers are hyperbolic, inferring that the balance of powers is fractured. Therefore, there needs to be a balance of powers to achieve the collective European aim of integration.

There have been implementations of this through Article 225 TFEU, which provides that the Commission must consider EP’s preferences when proposing legislation. This furthered the Commission’s accountability to the EP and boosted their apparent symbiotic relationship. This is true as Martin Westlake asserted that the Commission required the EP’s democratic legitimacy whilst the EP required the Commission’s support, since it was the primary legislative initiator.[47] For example, when the direct elections were delayed beyond 1978, the Commission declared that it would conduct itself as though the EP was already elected.[48] This intimates that their relationship was symbiotic as only with the Commission’s support could the EP retain its powers. Juliet Lodge said without this relationship, their legislative roles would be weakened.[49] For instance, the EP has the power to approve an incoming Commission, which often leads to a commissioners being replaced or reshuffled.[50] This indirect power of initiation is only effective if the Commission accepts the EP’s authority. Notwithstanding, Article 14(1) TEU states that the EP may elect the Commission President, inferring that the EP has a direct influence over the Commission. Therefore, although Westlake and Lodge purported there was a symbiotic relationship, more recently, the EP has become that powerful it does not need the Commission’s support.[51] Overall, the EP has both a direct and indirect influence on the initiation of legislation, hence it can be submitted that its role should be limited, and instead the symbiotic relationship should be revived to achieve a legislative balance.

Conclusion

The EP’s legislative evolution has been complex and evidently power-hungry. When it became directly elected, it catalysed into a law-making body via the SEA, TEU and TFEU. Mainly because there was a perceived “democratic deficit” in the EU, partly caused by the Commission’s dominant legislative powers. Nonetheless, many commentators have refuted this “democratic deficit” calling it untrue,[52] and a scare-mongering tactic[53] to usurp power from the already accountable and legitimate Commission. Indeed, Dieter Grimm purported that the “democratic deficit” could not be removed by the institutional short-term reforms of the various Treaties.[54] Ergo, it can be implied that the “democratic deficit” will only be resolved if the Commission retains its powers, because it is a legitimate decision-making body.[55] This submission becomes very convincing when compared with Joerges who advocated for the promotion of comitology as under it MS’ concerns cannot be filtered out,[56] thereby furthering accountability and legitimacy. Indeed, 61% of top EU officials in a 2001 survey expressed that they did not want the EP to gain more legislative powers, especially if it would cause the Commission to lose its monopoly of initiative.[57] It is doubtful that this position has altered due to a 2007 survey which highlighted that about half of all MS activists declared that they distrusted the EU entirely.[58] Hence, it can be submitted that consensus is against the EP’s future legislative expansion over the Commission, as legitimacy would decrease otherwise. Overall, this article concludes that as the EP is already a significant EU institution, it requires no further powers over the Commission. Instead, the legislative triangle should be equalised by incorporating the symbiotic relationship, which will allow both legislatively powerful institutions to work together to achieve their collective aim of European integration.

[1] Richard Corbett, Francis Jacobs and Darren Neville, The European Parliament (9th edn, John Harper Publishing 2016) 4.

[2] See generally Amie Kreppel, ‘Necessary but not sufficient: understanding the impact of treaty reform on the internal development of the European Parliament’ (2003) 10 (6) JEPP 884, 911.

[3] (n 1) 5.

[4] Roland Bieber, ‘Democratic Control of European Foreign Policy’ (1990) 1 EJIL 148, 156.

[5] (n 1) 4.

[6] Paul Craig and Gráinne De Búrca, The Evolution of EU Law (2nd edn, OUP 2011) 30.

[7] ibid.

[8] Joseph Weiler, The Constitution of Europe “Do the Clothes have an emperor?” and other essays on European Integration (CUP 1999) 38.

[9] Case 138/79 Roquette Frères v Council [1980] ECR 3333.

[10] (n 1) 305.

[11] Pierre Mathijsen, ‘The Power of Co-Decision of the European Parliament Introduced by the Maastricht treaty’ (1993) 8 Tul Eur & Civ LF 81, 83.

[12] (n 10).

[13] Christine Neuhold, ‘The “Legislative Backbone” keeping the Institution upright? The Role of the European Parliament Committees in the EU Policy-Making Process’ (2001) 5 (10) EIoP 1.

[14] ibid.

[15] John Peterson and Michael Shackleton, The Institutions of the European Union (3rd edn, OUP 2012) 129.

[16] ibid 127.

[17] Paul Craig and Carol Harlow (eds), Lawmaking in the European Union (Kluwer Law International Ltd 1998) 142.

[18] For a further discussion see (n 1) 306, 307.

[19] See generally, David Spence and Geoffrey Edwards (eds), The European Commission (3rd edn, John Harper Publishing 2006) ch 9.

[20] (n 15) 125.

[21] Damian Chalmers, Gareth Davies and Girgio Monti, European Union Law (3rd edn, CUP 2014) 119.

[22] ibid.

[23] (n 13) 16.

[24] Georg Haibach, ‘Comitology: A Comparative Analysis of the Separation and Delegation of Legislative Powers’ (1997) 4 MJ 373, 382.

[25] (n 6).

[26] (n 15) 116.

[27] Peter Moser, ‘The European Parliament as a Conditional Agenda Setter: What Are the Conditions? A Critique of Tsebelis (1994)’ (1996) 90 (4) APSR 834, 837.

[28] John W. Sap, ‘The Reflection of Calvinism in the Development of the European Parliament’ (1997) 6 (3) TFLR 257, 271.

[29] See also Honor Mahony, ‘EU parliament has “surplus” of democracy’ (euobserver, 1 July 2013) <https://euobserver.com/political/120696> accessed 20/03/20 which demonstrates another “democratic surplus,” since MEPs have more discretion to vote as party discipline is much lower at the EU level.

[30] Robert Cooper, ‘The European Union does not have a democratic deficit - it has a democratic surplus’ (LSE, 6 November 2014) <https://bit.ly/1hIu4MH> accessed 20/03/20.

[31] ibid.

[32] Neill Nugent and Mark Rhinard, The European Commission (2nd edn, Palgrave 2015) 10.

[33] K. Featherstone, ‘Jean Monnet and the “Democratic Deficit” in the European Union’ (1994) 32 (149) JCMS 154, 155.

[34] David Coombes, Politics and Bureaucracy in the European Community (Sage Publications Inc 1970) 82.

[35] Jeffrey Stacey, ‘Displacement of the Council via informal dynamics? Comparing the Commission and Parliament’ (2003) 10 (6) JEPP 936, 942.

[36] Anthony Arnull and Daniel Wincott (eds), Accountability and Legitimacy in the European Union (OUP 2002) 4.

[37] Amie Kreppel, ‘Bicameralism and the balance of power in EU legislative politics’ (2018) 24 (1) J Legis Stud 11,13.

[38] B. Peters, ‘Agenda-Setting in the European Community’ (1994) 1 (9) JEPP 9, 26; see also Beate Kohler-Koch and Berthold Bittberger (eds), Drafting the Democratic Legitimacy of the European Union (Rowman & Littlefield Publishers Inc 2007) 324.

[39] C. Joerges and J. Neyer, ‘Transforming Strategic Interaction into a Deliberative Problem-Solving: European Comitology in the Foodstuffs Sector’ (1997) 4 (609) JEPP 618, 620.

[40] (n 13) 21.

[41] ibid.

[42] Michelle Cini, The European Commission: Leadership, organisation and culture in the EU administration (MUP 1996) 224.

[43] Petr Kratochvíl & Zdeněk Sychra, ‘The end of democracy in the EU? The Eurozone crisis and the EU’s democratic deficit’ (2019) 41 (2) J Eur Integr 169, 185.

[44] Edward Best, ‘Legislative Procedures after Lisbon: Fewer, Simpler, Clearer?’ (2008) 15 (1) Maastricht J Eur & Comp L 85, 96.

[45] John Fairhurst, Law of the European Union (9th edn, Pearson Education Ltd 2012) 129.

[46] Stephen Weatherill and Paul Beaumont, EU Law: The Essential Guide to the Legal Workings of the European Union (3rd edn, Penguin 1999) 108, 112.

[47] (n 17) 140.

[48] ibid.

[49] Juliet Lodge, ‘The European Parliament and the Authority-Democracy Crises’ (1994) 531 Annals AAPSS 69, 82.

[50] (n 1) 7.

[51] (n 37) 15.

[52] (n 30).

[53] (n 42) 1.

[54] D. Grimm, ‘Does Europe Need a Constitution?’ (1995) 1 (3) ELJ 293, 297.

[55] (n 42).

[56] C. Joerges, ‘Deliberative Supranationalism: A Defence’ (2001) 5 (8) EIoP 8, 9.

[57] Lisbet Hooghe, The European Commission and the Integration of Europe (CUP 2001) 83.            

[58] Beate Kohler-Koch and Berthold Bittberger (eds), (n 38) 202..