Effectiveness of the European Parliament as a Legislative Body: A Critical Analysis

Giulia Gentile, LLM in European Law, King’s College London 

Since its creation, the European Parliament (EUP) has been the subject of considerable debate. Originally established in 1951 as “Assembly”, this body was instituted as the legislator of the European Coal and Steel Community. However, before the entry into force of the Maastricht Treaty, the EUP could barely be compared to a legislative body, since its policy-making powers were extremely bounded.[1] This Treaty, indeed, assigned to the EUP enhanced legislative powers, further strengthened through the following European Treaties.[2] Nevertheless, although the EUP’s decision-making powers have significantly increased in the last twenty years, a deeper analysis shows that the EUP’s influence as a legislative body still have significant constraints. This paper will first analyse and assess the power of the EUP as a legislator in the ordinary procedure (OP) and its “deviation”, the informal bargaining (IB), the current main legislative processes in the EU.[3] Subsequently, a brief analysis of the potential EUP’s role in the UK’s renegotiation of its membership in the EU will provide further elements of reflection on EUP’s effectiveness as a legislative body.[4]

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Europe in Crisis: King’s Policy Institute on Democratic Legitimacy in Europe

Ermioni Xanthopoulou and Adrienne Yong

PhD Candidates in EU Law at King’s College London

 

As part of the continuing “Europe in Crisis” project (kicked off by the UKAEL Annual Lecture by Sir Nigel Sheinwald, a review of which was done earlier on this very blog) on November 12, 2013 an extremely lively panel of three Europe experts debated the question of the democratic legitimacy in Europe. Held by the King’s Policy Institute and chaired by Professor Anand Menon, the public lecture attracted a range of different attendees, from students and professors to practitioners from the Foreign Office and the like. Undoubtedly, the very topical title was a draw in itself, and the debate certainly did not fail to impress. With the personalities of the panellists clashing professionally, a heated and animated discussion fostered an exciting atmosphere for all those present to immerse themselves in, leaving everyone with food for thought as it concluded.

 

John Peet

The first panellist was John Peet, the Europe Editor of The Economist. Given his long serving background in the civil service, it was apt he began with establishing when the notion of a ‘democratic deficit’ was first spoken of. He cites 1979, which presents an interesting juxtaposition with how it may be perceived now. Indeed, this author was under the impression that perhaps the idea of democratic legitimacy would not simply be an institutional question. However, it was this route which the discussion followed hence the solution considered throughout was the directly elected European Parliament. Materialising itself in 1979, it persisted to be the discussed solution to the democratic deficit throughout the 1970s until the 1990s. Peet argues that whilst it was a resolution at the EU level, it was inherently unsatisfactory hence in 2013, the question would still be put forward to the public in a lecture held by King’s.

 

Peet argues that it was unsatisfactory for 3 reasons – firstly, the Council did not answer to national Parliaments. There was a dissonance with the national Parliaments, as they were hardly even interested. Secondly, by the 1990s, the European project had shifted away from federalising the EU and towards handing power back to national governments. Finally, and this would later be contested by the second panellist, the European Parliament never acquired legitimacy despite being directly elected. This was evident from the fall in voter turnout for the Parliament, as many in the EU still questioned the EU. Admittedly, the Eurocrisis had made everything worse. It encouraged increased intrusiveness into national legal orders somewhat by necessity, leading to Peet asking the question “Who elected Ollie Rehn?”[1]

 

Ultimately, Peet concludes by arguing that there needs to be a bigger role for national Parliaments considering that the European Parliament fails to resolve anything in terms of democratic legitimacy. The money in the EU is national, thereby encouraging a greater role for them in terms of their input. Germany truly believes this, given their accountability in terms of the Eurocrisis. More subsidiarity needs to be shown. Peet argues that even a return to pre-1979 may be desirable, scrapping the direct elections completely.

 

Simon Hix

Simon Hix, Professor at LSE on European and Comparative Politics, vehemently protested, ‘disagreeing with everything’ his previous panellist has said. He began by noting that democratic accountability today was important only to a small group of academics given that the Eurocrisis had lead to re-distributional outcomes. Accountability, however, was important because the EU was about the market, primarily. He equates democracy with legitimacy; there was some winners and ultimately and unavoidably, some losers. It was insufficient to rely solely on the national level to provide this accountability. Hix argued that unanimous agreement amongst governments would be better to achieve this.

 

Hix was famously named as one of the last people to believe in the European Parliament. Pre-1979, national MPs were not useful checks on the government, it were the independent MEPs who were more effective. Hix declared himself a European Parliament supporter because the Council was non-transparent in their decision making. This seemed hypocritical to him – it was supposedly the best representative of the citizens but their debates on legislative amendments were not openly available thus far. Transparency was crucial for him; national Parliaments needed to increase the scrutiny of the Council.

 

There were two different checks and balances with the advent of the Council and the European Parliament. As the Commission makes political choices, they must be more democratically political elected. He argues that there is potentially a need for a choice of Commission President in this sense as well. As for the position of the UK, there is also a need for a UK referendum because the EU is so different now. The UK did not sign up to this current architecture, and the question remains do we want to be isolated in the EU, or isolated outside it?

 

Vijay Rangarajan

Vijay Rangarajan, of the Foreign and Commonwealth Office then asserted that democratic legitimacy is a shared problem across Europe as it is primarily an issue of contact between citizens and governance. Moreover, people do not know their rights at the EU level. However, he noticed, as the other speakers also did, that the Eurozone countries are those particularly concerned about the decision-making which concerns them. He interestingly proclaimed that the new European Parliament will have a ‘significant psychotic element’ and he stressed the need for national parliaments’ further involvement. National parliaments in particular need to work together and ‘put a break on efficiency’ when it is necessary. He argued this could possibly enhance democratic legitimacy issues.

 

Later on, Rangarajan referred to the ‘yellow card procedure’, which national parliaments can issue to the Union legislature, requiring the institutions to reconsider a proposal. According to Article 7(2) of the Protocol on the Application of the Principles of Subsidiarity and Proportionality,[2] the draft must be reviewed where ‘reasoned opinions on a draft legislative act’s non-compliance with the principle of subsidiarity represent at least one third of the votes allocated to the national parliaments’ whereas the threshold is much higher for draft legislative acts submitted on the basis of Article 76 TFEU on the Area of Freedom, Security and Justice (AFSJ). In this second case, the threshold should be a quarter. Concerns have already been expressed on the operation and the effectiveness of this procedure, which he reiterated by reminding us that a plethora of national parliaments have voted against the Proposal for a Regulation on the Establishment of the European Public Prosecutor’s Office. Furthermore, he stressed that the Council should determine and clarify what its position is and noticed again that the legitimacy has been undermined by the call for efficiency.

 

Questions

What was really intriguing was the discussion that followed when the audience was given the time and chance to ask the experienced panel various questions. It was a very stimulating opportunity for everyone there. The questions ranged from the different perceptions of democratic legitimacy across countries, the impact of the CJEU rulings on decision making to the information deficit in the concept of a ‘European demos’.

 

Concerning the various experiences of democratic deficit across Member States, Hix mentioned that the countries facing financial and social crises feel more strongly the imbalances of power and the lack of democratic legitimacy. Peet stressed that the problems are huge in the South Mediterranean countries as people feel that they have lost control of the decision making which concerns them directly. He recommends that national parliaments should have a bigger role because people tend to vote on national issues and on the basis of national parties.

 

Regarding the CJEU and its potential role in legitimacy, after pointing out the significance of the division of power principle, the well-established Economist journalist stated that the Court is a rather ‘ignored’ institution and suggested that people should probably have more interest in who is appointed as a judge, given the importance of the case law. Hix then indicated this institution is interesting regarding the issue of democratic legitimacy, as it has been found that the Court quite frequently takes into account to Member States perception and tilts the balance towards a decision considering national perceptions, providing as an example the Tobacco Advertising case.[3] The need for the appointment of real judges and not diplomats or lawyers has been also underscored by Peet, after being hinted at by the bright audience.

 

As a final point of discussion the panel was asked to provide its opinion on whether there is potential for a European demos, consisting of the European youth and the emerging generation. This is indeed a very interested topic considering the common financial and social problems faced by youths’ experiences of crises. There are serious limitations on their freedoms. Hix claimed that a European demos would be the result of a European democracy, and not the prerequisite. However, it should be mentioned that, contrary to Hix’ final argument, for democracy to exist, there should be a demos to rule and that European citizens, albeit unaware of the very existence of it, might actually constitute a European demos concerned with a plethora of common social and financial problems at the transnational level of the EU.

 

Conclusion

Although the Eurozone financial crisis has recently dominated the debates in relation to EU affairs and EU law, as it was noticed by the panel speakers and by EU lawyers, the discussion on the lack of democratic legitimacy in the EU is always a stimulating topic. The problem is far from resolved. It could be said that this topic is enlightened by the changes brought by the Lisbon Treaty with regard to new powers allocated to European Parliament and to national parliaments. Hence, the debate seeks new direction in view of the social and financial problems that the EU countries have recently faced. Those concerns have particularly become greater recently as the people of Europe feel disconnected from the decision-making on tough policies and laws, despite the admittedly enhanced inter-institutional balance, for which there is still much room of improvement. It has been a pleasure to attend such a great discussion, which definitely gave its audience ample food for thought. Although Euro zone financial crisis has recently dominated the debates in relation to EU affairs and EU law, as it was noticed by the panels and by EU lawyers, the discussion on the lack of democratic legitimacy in the EU is always a stimulating topic. Moreover, the problem is far from resolved. It could be said that this topic is enlightened by the changes brought by the Lisbon Treaty with regard to new powers allocated to European Parliament and to national parliaments. The debate however seeks new direction in view of the social and financial problems that the EU countries recently have faced. Democratic legitimacy concerns have particularly become greater recently as the people of Europe feel that are disconnected from the decision-making on tough policies and laws, despite the admittedly enhanced inter-institutional balance, for which of course there is still much room for improvement. It was a pleasure attending such a great speech and discussion which definitely gave its audience food for thought.


[1] Ollie Rehn is the Vice President of the European Commission, and the European Commissioner for Economic and Monetary Affairs. He has outwardly supported fiscal austerity as to the only way out of the Eurocrisis.

[2] Protocol on the Application of the Principles of Subsidiarity and Proportionality [2004] 310/207

[3] Case C-380/03 Tobacco Advertising [2006] ECR I-11573

Are European elections truly European?

Nikolay Domanov

LLM, MA in International Relations, Sofia University; Post-Graduate Diploma candidate in EU Competition Law, King’s College London

One of the main criticisms against the European Union (EU) is related to its democratic legitimacy. This is the reason why the Treaty of Lisbon[i] introduced many new instruments aimed at lowering the democratic deficit in the EU, such as the ordinary legislative procedure[ii], the European citizens’ initiative[iii], the European political parties[iv], etc.

Nevertheless, the only European institution comprised of directly elected members remains the European Parliament (EP). If such a scenario is sufficient to establish a strong EU based on the principle of representative democracy is yet to be determined.

Whether the European elections are truly European is a rather difficult question the answer to which may be found by examining the voter turnout and several key aspects of EU electoral legislation.

1. Some history

European elections as they currently exist within the European Union are limited to the European Parliament elections. The construction of this democratic institute, however, evolved over a considerable amount of time.

The Treaty of Paris[v] of 18 April 1951 stipulates the establishment of the General Assembly of the European Coal and Steel Community. It was to consist of 78 members and to meet in Strasbourg. The Treaty of Rome[vi] from 1958 changed these provisions and transformed the General Assembly into Assembly of the European Communities, which was to have jurisdiction with respect to all three Communities. In 1958, this assembly was unofficially named European Parliament. Such title was legally established later by the Single European Act[vii] in 1986.

Until 1979, the Assembly was formed by national parliaments, and individual members exercised dual mandate. Such formation greatly diminished the importance of the Assembly.

The first direct elections to the European Parliament were held in 1979 under the provisions of the Act concerning the election of the members of the European Parliament by direct universal suffrage annexed to the Council decision of 20 September 1976, as amended[viii], in particular Article 14 thereof. This was a significant development in strengthening the only institution formally representing ‘the people of the countries of the European Community’.

2. The current state of play

Under the current legislation, the elections to the EP have been left entirely to individual countries and thus to national parties. Unfortunately, the national parties tend to consider the European campaign to be of secondary importance which decreases the European awareness of the voters in general. Additionally, the popularity of the political parties at European level decreases, too. The latter, however, is about to change as the EP and the Council are currently drafting a new Regulation on the Statute of European Political Parties[ix].

The awareness of Europeans on the European policy issues, on the other hand, is surprisingly low. The commitment of the European electorate to European elections is based mainly on national election platforms, which often focus on issues that are not relevant to the greater European political environment. In addition, national parties are bold enough to openly ignore EU affairs. In this way the European elections will never be able to properly address the EU dimension of politics.

Decisive steps must be taken in order to convince the electorate of the not so obvious fact that a shift in the balance of power among MEPs will result in a change of EU policies. In other words, the voters have to apprehend that it is them who can influence the development of the EU integration process. If achieved, this scenario shall at least in theory lead to an increase of the confidence in EU affairs, and in particular in European parties and politicians. The establishment of a strong and functioning EU must not in any case rely on national politics which may be complicated, but in fact tend to be narrow and quite comfortable to some domestically oriented politicians in comparison to the constantly changing political space at the broader European level.

3. EP elections under the Treaty of Lisbon and representation of EU citizens

According to Article 14, paragraph 2 of the Treaty on European Union (TEU) the number of MEPs shall not exceed 750, plus the President. There is a minimum threshold of 6 members per Member State and the Treaty requires that no Member State shall be allocated more than 96 seats.

Moreover, the TEU provides for a ‘degressively proportional’’ representation of citizens. This principle is an elegant federalist concept according to which the interests of the smaller states are protected by granting smaller countries relatively bigger representation. More precisely formulated, the requirement stipulates that a MEP from a large Member State on average represents more citizens than a MEP from a small Member State. The ‘weighted representation’ of the seats (i.e. the ratio of population to seats) is therefore greater in larger Member States than in smaller ones.

In the 2004 Parliament there were ten countries with too many or too few representatives. In the current Parliament, elected in June 2009, there were nine such countries. Even after the adoption of the 18 additional members of Parliament under the Lisbon Treaty, five ‘inconsistencies’ will remain.

It is important to recognise that the method currently used to allocate seats is actually a political adjustment and, as such, it is in a state of constant turmoil. The obvious major destabilizing factor is the diminishing population of Germany. In the coming decades the population differences will diminish as Germany’s population decreases and the populations of France, the UK and Italy continue to grow. If Germany remains with the maximum number of seats (96) despite its falling population, the next most populous states will have to be given a much larger number of seats than at present. Such an outcome will severely prejudice the interests of the medium sized states, thus jeopardising degressive proportionality. Obviously, this development will be detrimental to, mainly, the interests of medium-size countries.

In the light of those factors it is clear that a well functioning democratic system for allocation of seats in the European Parliament must be established.

4. The electoral right – a key aspect

The European Union has no single definition of citizenship. There is a large variety of national citizenship laws in the Member States. This inevitably reflects on the exercise of voting rights of every European.

However, over the years, significant efforts have been made to achieve a single European electoral act. Under the current rules elections in each Member State shall be held on the basis of universal, equal and direct suffrage by a secret ballot under the rules of the proportional system. General principles valid at European level include: duration of the parliamentary term and rules governing the beginning and the end of the legislature; time of the elections; incompatibility of parliamentary mandate.

The proportional system is applied via national, regional or mixed lists. Member States have the right to determine the threshold, which may not exceed 5% of the validly cast votes in the elections. Voting in Cyprus, Greece, Belgium and Luxembourg is compulsory. It is clear that overcoming the current regional differences and reaching a common European electoral reform will be a very demanding and rather complicated endeavour. It will, no doubt, require political determination.

It is the European Parliament that has every right to seek all possible means of strengthening its authority to the public, becoming the focus of the new European political space. Unfortunately, the search for political legitimacy is undermined by continuing decline in voter turnout, by poor media coverage, by the apathy of the political parties and even by the hidden envy of some national parliaments, driven by the growing powers of the European Parliament. It’s difficult to ignore the fact that turnout in elections is falling steadily from 63.0% in 1979 to 43.1% in 2009.

5. The electoral reform

During the seventh legislature the European Parliament has twice attempted to adopt a modification of the Act concerning the election of the members of the European Parliament by direct universal suffrage. The liberal Andrew Duff on behalf of the Committee of Constitutional Affairs drafted two reports. Finally, they were both rejected, mainly for political reasons. The main proposals included in the first Duff Report[x] are clearly aimed at the expansion of the democratic legitimacy of the European Parliament by strengthening the notion of European citizenship. The core of the proposed changes is, however, the system for seat allocation in the European Parliament.

The main idea of the compromise is to find a fair and legally indisputable method of allocating seats every five years, taking into account different factors such as migration, demographic changes and accession of new Member States. Realistically, and in accordance with its principles, it is the medium-sized states which would primarily lose mandates in the Parliament for the benefit of the larger ones, which will receive more seats. For instance, Bulgaria, Austria and Sweden will lose three seats, whereas Portugal, Czech Republic and Hungary – four. On the contrary, France would get 11 additional seats, UK – 8, Spain – 8 and Italy – 6.

The biggest challenge to be considered is the accession of new Member States. For example, if a country with a relatively small population joins the EU, it would not have such a big impact in comparison with the scenario of a larger country joining the EU. The impact will be twofold. First, the ‘price’ of a single seat will be changed, measured in a number of EU citizens and, second, since the total number of seats is fixed, the seats allocated to the new member must be taken from the current ones. Put simply: the better part of the existing members would lose seats.

In his second report[xi], Andrew Duff considerably reduced the scope of the proposals. The tactic of explicitly stating proposals was transformed into more general language. The second draft report does not mention anything about the ‘Cambridge Compromise’ or another formula for allocation of seats. But it does appeal to the Council to find a ‘common’ formula. Undoubtedly, the starting point would be precisely the formula presented in the ‘Cambridge Compromise’.

The solution – or how the parliamentary seats are allocated

The final decision to determine the number of seats allocated to each Member State shall be taken unanimously by the European Council. It shall act on a proposal adopted by the Parliament. The Lisbon Treaty provides the framework and the specific allocation should be done in accordance with a decision taken before the 2009 elections: the rule adopted in the Protocol № 36 to the Lisbon Treaty. Since the Treaty of Lisbon entered into force later than planned, the 2009 elections and the subsequent allocation of seats were carried out under the provisions of the Treaty of Nice[xii]. A total of 736 MEPs were elected. At its meeting on 18 and 19 June 2009 the European Council took a decision on constituting 18 additional seats. France, Austria and Sweden received two additional seats each. Spain got 4 extra seats and Bulgaria, Italy, Latvia, Malta, The Netherlands, Poland, Great Britain and Slovenia – one each. Under this approach, until the 2014 elections the number of MEPs will be 754.

Unless it comes to a general revision of the Treaty of Lisbon, sooner or later a new system for allocation of seats in the EP shall be established and it is clear that, as analyzed above, it will be aimed against the interests of medium-sized countries.

How exactly the electoral reform is going to take place is an issue with many question marks. It is clear, however, that some reform will take place. That is why both politicians and citizens must be aware of what is about to happen. How European Europe will ultimately be is completely up to the European citizens.


[i] It was signed on 13 December 2007 and entered into force on 1 December 2009.

[ii] Article 294 TFEU.

[iii] Article 11, paragraph 4 TEU.

[iv] According to Article 10(4) of the Treaty on European Union and Article 12(2) of the Charter of Fundamental Rights of the European Union political parties at European level contribute to forming European political awareness and to expressing the political will of citizens of the Union.

[v] Treaty establishing the European Coal and Steel Community (unofficially called the Treaty of Paris) was signed on 18 April 1951 and entered into force on 23 July 1952 and expired on 23 July 2002.

[vi] Treaty establishing the European Economic Community (unofficially called the Treaty of Rome) was signed on 25 March 1957 and entered into force on 1 January 1958.

[vii] It was signed on 17 February 1986 in Luxembourg and on 28 February 1986 in The Hague, and entered into force on 1 July 1987.

[viii] Council Decision 76/787/ECSC, EEC, Euratom (OJ L 278, 8.10.1976, p. 1) as amended by Council Decision 93/81/Euratom, ECSC, EEC (OJ L 33, 9.2.1993, p. 15) and by Council Decision 2002/772/EC, Euratom (OJ L 283, 21.10.2002, p. 1).

[ix] See Proposal for a Regulation of the European Parliament and of the Council on the Statute and funding of European political parties and European political foundations (COM(2012)0499)

[xii] It was signed on 26 February 2001 and entered into force on 1 February 2003.