Article

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]

According to the Inter-parliamentarian Union,[5] parliaments’ fundamental role is the exercise of legislative powers, which consists in enacting the law. On the contrary, the EUP exerted merely consultative powers for almost 40 years. In fact, other institutions could consult it in order to obtain its non-binding opinion on legislative proposals. This situation generated concerns about the effective role of the EUP.[6]

Currently, the EUP acts as a co-legislator in the OP, introduced through Article 294 TFEU. This new procedure is featured by an enhanced role of the EUP. As argued by Peterson and Shackleton,[7] in the OP the EUP and the Council are recognised as having “equal status”.[8] This procedure is, indeed, based on three readings, in which the EUP and the Council may approve, amend or reject a legislative proposal.[9] If the EUP and the Council agree during the first reading, then the act becomes law. In case an agreement is not reached at this stage, further navettes between the EUP and the Council take place, up to a maximum of three, until an agreement is reached.[10] The OP is featured by the following characteristics: (i) the Commission has the quasi-monopoly on the legislative initiative; (ii) in the first reading, after the EUP shares its position but before Council issues its own, the Commission may withdraw the proposal; (iii) enhanced majority votes apply when the EUP amends or rejects the Council’s position in the second reading.[11]

This overview shows that the EUP acts as a co-legislator in the OP, jointly with the Commission and the Council. For this reason, several authors have welcomed this procedure, underlining its beneficial effects on the EUP’s legislative influence. For instance, Konig[12] and Monar[13] highlight the enhancement of the EUP’s veto powers. In particular, during the second reading, the EUP may reject the legislative proposal with an absolute majority vote. The rejection of the SWIFT Agreement by the EUP in 2010 demonstrates how it is capable to effectively shape European policies.[14] Furthermore, in case the Council and the EUP find an agreement in the first reading, the final act will be worded according to the EUP position.[15] Hence, it has been claimed that ‘the Parliament has become the centre of attention for the Council’ in the context of the OP.[16] As a matter of fact, law enactment has become impossible without the EUP’s approval.

However, the EUP’s legislative powers in the OP remain limited overall. First of all, the EUP is not entitled to launch legislative initiatives.[17] Under Article 225 TFEU, the EUP may only request the Commission to submit proposals, but the latter is not obliged to follow this call. As a consequence, this inhibits the EUP to directly influence European policies at initial stage.[18] In addition, amendments of the EUP to legislative proposals can be undermined by the Commission’s power to annul them by dismissing its own proposal, before the Council has taken any action in its first reading. If the EUP proposes amendments that significantly diverge from the proposal of the Commission, the latter could withdraw the entire legislative procedure.[19] Therefore, the EUP is under the leverage of the Commission in many respects. Finally, the voting rule applicable to the EUP during the second reading may also undermine the EUP’s role in amendments as ‘the second reading absolute majority requirement for amending or rejecting […] puts the EUP at a disadvantage vis-à-vis the Council, as it is easier for the EUP to accept the common position of the Council than to reject or amend it’.[20] These findings show that although the increase of the EUP’s legislative powers seems to be substantial, in reality it is still limited in the OP. Yet, a more complete picture of the EUP’s legislative powers can only be seen through an analysis of the IB practice, the second main law-making process in the EU.

The IB practice leads to the adoption of a legislative act without executing the entire OP.[21] The EUP, the Commission and the Council, indeed, negotiate the legislative measure in ‘informal trialogues’,[22] concluding the law-making process the latest in an early second reading.[23] Introduced in 1999, the use of IB has increased to 80% of the total number of laws enacted between 2008 and 2009,[24] showing its substantial impact on the law-making process overall. In particular, Hansen observes that the IB increases the EUP’s effectiveness as a legislator.[25] Through the IB the EUB has the possibility to interact more closely with the Council and the Commission, proposing and discussing amendments more efficiently.[26] IB, therefore, reveals to be more time-saving than the OP. In addition, the EUP may benefit from closer dialogue with other institutions to support its policies.

On the contrary, research by Héritier and Reh shows that IB has negative effects on the legislative influence of the EUP.[27] Firstly, only a few chosen parliamentarian negotiators lead the discussion with other institutions, which means that the weakest parties have limited possibilities to be represented.[28] These parties are penalised also by the fact that no strict voting rule applies, thus, votes regarding the amendments to the legislative proposal may not take place in the EUP. As a consequence, the majority parliamentarians will likely impose their position.[29] Finally, since IB is a “secluded trialogue”, documentation regarding the legislative process is not available. Therefore, “pre-agreement(s) reached in trialogue (are) not subject to extensive public debate and amendments”.[30] In light of these findings, it can be argued that the enhanced effectiveness of the EUP as a negotiating party in the context of the IB implies, however, a correspondent “sacrifice” of (i) the EUP minority’s voting power and (ii) a more transparent public debate on the different policies proposed by the EUP’s parties. By de facto, the EUP tends to act essentially as a non-effective representative body of the interests of all the European citizens in the context of the IB.[31]

The limited effectiveness of the EUP’s legislative powers can also be seen in some politically-sensitive policy areas which could change the arrangement of the EU, such as the current renegotiations of UK membership to the EU.[32] Looking to the treaties, potential legal basis for these negotiations could be found in Article 50 TEU (‘Withdraw from the EU’) or Article 48 TEU (‘Treaties’ revision procedure’). According to Article 50, when a Member State wishes to withdraw from the EU, it must notify its intentions to the European Council, which will negotiate and conclude an agreement with that State.[33] Therefore, according to the text of this provision the EUP has no official role in the negotiations. However, it must provide its consent to the agreement.[34] Since there is no previous case of withdrawal from the EU,[35] no guidance or case-law is available on the application of Article 50 TEU. Nevertheless, in light of the overall enhanced powers of the EUP, it can be reasonably assumed that its consent it is a sine qua non condicio to the agreement. As a consequence, the EUP could potentially impede the exit of the UK from the EU and have a decisive role in the withdrawal procedure. However, due to the highly complex and politically sensitive implications deriving from this scenario,[36] the likelihood of a refusal of consent from the EUP seems to be very low. [37]

In the event that the UK would instead renegotiate its current position through a Treaty revision, this process could follow an ordinary or a simplified procedure according to Article 48 TEU. While in the ordinary procedure the EUP would be part of the Convention in charge of the Treaties’ reform, and, therefore, able to directly take part in the revision process, under the simplified procedure the EUP acts merely as a consultative body.[38] Indeed, in this last scenario the EUP will have a very limited legislative influence on the Treaties’ revision amending the UK position in the EU. However, the simplified procedure only applies in case of amendments limited to the Part Three of the TFEU,[39] concerning the internal policies and action of the EU. Therefore, the applicability of this procedure and, subsequently, the potential limited role of the EUP in the Treaties’ revision depend on the extent and the scope of the UK’s requests.

The above analysis shows that the EUP has still some substantial constraints on its influence in the law-making process. As demonstrated, the main reasons for this are a persistent lack in the EUP’s powers as well as rules and institutional practices which undermine its legislative effectiveness. Scholars such as Héritier and Reh suggest that reforms should be put in place to strengthen its powers and avoid its inefficiencies.[40] A Parliament that is not influential as a legislative body implicates that European citizens are not fully represented in the EU legislative process, bearing in mind that the EUP is the only EU institution whose members are directly elected. Thus, the need for reform does not aim only at reinforcing the EUP, but mainly to redress the democratic deficit in the EU. A EUP enabled to influence the decision-making in the EU would reduce the democratic deficit, and, therefore (i) the distance between voters and European institutions as well as (ii) EU-scepticism related to the perception of the EU as a technocratic organization.[41] For these reasons, over the last five years calls to enlarge the EUP’s legislative powers have increased.[42]

As a conclusion, this article has demonstrated that the EUP still faces significant constraints in acting as a “democratic legislator”, despite the increase of its powers in recent years. The main underlying reasons are (i) a persistent lack of legislative powers of the EUP (such as, the power to initiate legislation) as well as (ii) unfavourable institutional rules and practices for the EUP (for instance, the EUP limited participation in the UK’s potential withdrawal procedure from the EU or the dominance of EUP majority parties within the IB). This situation generates concerns about the state of democracy in the EU, since the legislative powers within the EU are mainly exerted by technocratic rather than representative institutions, such as the EUP. However, it is submitted that the mere increase of powers in favour of the EUP would not be able to resolve the democratic deficit affecting the EU. Providing the EUP with more effective legislative powers should be accompanied by a broader redistribution of powers among European institutions in order to redress the EU’s democratic deficit and ensure that sufficient checks are imposed on the exercise of power by the EU institutions.

[1] Ian Blache and others, Politics In The European Union (Oxford University Press 2014).

[2] Blache and others (n 1).

[3] Europarl.europa.eu, “Legislative Powers” (2016) <http://www.europarl.europa.eu/aboutparliament/en/20150201PVL00004/Legislative-powers> retrieved 26 January 2016.

[4] The analysis on the EUP’s role in the UK’s membership renegotiations is based on the publicly available information by 11 February 2016.

[5] Inter-parliamentarian Union Parliaments Of The World – A Comparative Reference Compendium (Gower Publishing Company Limited 1986).

[6] Blache and others (n 1).

[7] John Peterson and Michael Shackleton, The Institutions Of The European Union (4th edn, Oxford University Press 2014).

[8] Peterson and Shackleton (n 7) 69.

[9] Paul Craig and Graianne De Burca, EU Law – Text, Cases And Materials (6th edn, Oxford University Press 2015).

[10] Craig and De Burca (n 9).

[11] Craig and De Burca (n 9).

[12] Thomas König, “Why Do Member States Empower The European Parliament?” (2008) 15 Journal of European Public Policy.

[13] Jorg Monar, The European Union’S Institutional Balance Of Powers After The Treaty Of Lisbon (1st edn, 2011) <http://www.ab.gov.tr/files/ardb/evt/1_avrupa_birligi/1_2_kurumlar/the_european_union_after_the_treaty_of_lisbon.pdf> accessed 26 January 2016.

[14] Peterson and Shackleton (n 7).

[15] Craig and De Burca (n 9).

[16] Peterson and Shackleton (n 7) 138.

[17] Eva-Maria Poptcheva, Parliament Legislative Initiative – Library Of The European Parliament (1st edn, 2013) <http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2013/130619/LDM_BRI(2013)130619_REV2_EN.pdf> accessed 26 January 2016.

[18] Poptcheva (n 17).

[19] Poptcheva (n 17).

[20] Simon Hix and Bjorn Hoyland, The Political System Of The European Union (3rd edn, MPG Books Group, Bodmin and King’s Lynn 2011) 69.

[21] Hix and Hoyland (n 20).

[22] Adrienne Héritier and Christine Reh, “Codecision And Its Discontents: Intra-Organisational Politics And Institutional Reform In The European Parliament” (2012) 35 West European Politics.

[23] Héritier and Reh (n 22).

[24] Héritier and Reh (n 22).

[25] Vibeke Wøien Hansen, “Incomplete Information And Bargaining In The EU: An Explanation Of First-Reading Non-Agreements” (2014) 15 European Union Politics <http://doi:10.1177/1465116514541555> accessed 26 January 2016.

[26] Hansen (n 25).

[27] Héritier and Reh (n 22).

[28] Héritier and Reh (n 22).

[29] Héritier and Reh (n 22).

[30] Héritier and Reh (n 22) 1139.

[31] This view is shared also by David Yuratich, “Accountability, Parliamentarism And Transparency In The EU: The Role Of National Parliaments By Adam Cygan” (2014) 33 Yearbook of European Law.

[32] On 2 February 2016 the President of the European Council Mr. Tusk shared a letter addressed to the Members of the European Council on his proposal for a new settlement for the United Kingdom within the European Union. For further information: http://www.consilium.europa.eu/en/press/press-releases/2016/02/02-letter-tusk-proposal-new-settlement-uk/.

[33] Art. 50(2) TEU.

[34] Art 50 (2) TEU.

[35] Nicolaides Phedon, “Withdrawal From The European Union: A Typology Of Effects” (2013) 2 Maastricht Journal <http://www.maastrichtjournal.eu/pdf_file/ITS/MJ_20_02_0209.pdf> accessed 2 February 2016. According to the author, it is likely that the EUP’s consent will be based on a simple majority vote.

[36] The EUP would basically limit the democratically determined willingness of the UK’s people to withdraw from the EU in case the referendum will obtain a majority of votes for the UK leaving from the EU.

[37] It is worth pointing out that the withdrawal procedure will be probably triggered only in case the majority of the UK’s voters will opt for the exit of the UK from the EU.

[38] Art. 48(3) TEU.

[39] Art. 48(6) TEU.

[40] Héritier and Reh (n 22)

[41] Héritier and Reh (n 22).

[42] Poptcheva (n 17); Héritier and Reh (n 22); Yuratich (n 31).