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European Law Essay

"It will be clear from what has been said that the powers of the European Parliament fall short of those normally enjoyed by the legislature of a modern state.

Nevertheless, they are gradually increasing and the days are long past when it could be dismissed as no more than a talking shop."

It has been said that the European Parliament (EP) 'was born hungry and frustrated, and has developed into an habitual struggler'. If we look at the beginnings of the EP, or the Assembly as it was originally known, we can see that the first part of this statement is a very accurate description. The 1952 European Coal and Steel Community (ECSC) Treaty created, as one of its central institutions, an Assembly that was to exercise consultative and supervisory powers over the new community. However, as indicated by the choice of the name 'Assembly' over 'Parliament', no real legislative role was envisioned for the institution. In fact, as Hartley's statement above shows, there are not many terms more appropriate for what was originally established than 'talking shop'.

However, as the Communities grew and evolved, so too did the EP. It always referred to itself as the Parliament although it was not until the Single European Act in 1986 that it was officially given this name. It set out to make the most of what powers it had in the carrying out of its task of overseeing the Commission and receiving its annual report. It also had a power of censure over the Commission, which it came close to using on many occasions including the publicized resignation of the Santer Commission in 1999.

One of the difficulties of the EP from the beginning was that although the EEC had two legislative institutions, in the Council and Commission, the EP only had a part to play in supervising the latter. This meant that during the 1960s, when the balance of power between the Council and the Commission shifted in favour of the Council, the EP suffered a corresponding dilution of its own influence. If the Commission was in danger of becoming impotent, than how much more was the danger for the EP, which supervised it?

As it turned out, just as the Commission was managing to reassert its role in the Community legislative process, the EP gained important new powers over it. In 1969, the Member States managed to agree on two important developments. These were the principal of monetary union, and the principle of 'own-resources,' which meant that the EEC would fund itself independently of Member State Contributions. Two Budgetary Treaties in 1970 and 1975 gave the EP far more powers over supervising the budget and financing of the Community. 1970 was the first year that the Community budget was officially adopted by the EP, it had previously been adopted by the Council.

Perhaps most significant of all was the decision to implement direct elections for the EP, with the first one taking place in 1979. While this may not have provided the 'springboard for accelerated integration' that many had hoped for, it nevertheless reinforced the EP's position as a central institution. Despite being the first direct elections for any European institution anywhere, 1979 was probably one of the landmark years in what was to become known as the democratic deficit dilemma of the EC. This refers to the perception that Europe does not have a close enough connection with its citizens to properly represent them. While this is a much larger and more complex issue, it is important to notice that the low voter turnout in the 1979 EP elections of just 62% Community wide, and as low as 32.6% in the UK were an important early indicator of the gulf that was opening up between Brussels and the citizens of Europe.

In fact, it is precisely this democratic deficit that has been one of the main impetuses for further strengthening the EP As early as the Tindemans Report, commissioned in 1974 and named after the Belgian Prime Minister who prepared it, recommendations were being made that the only way forward for Europe, and the only way to deal with the growing democratic deficit, was to strengthen the role of the EP. It is not surprising that democracy requirements would accelerate the development of the EP. Parliaments after all were the birthplace of democracy. If you look at the EP from the point of view of the Member States, it would be more convenient for them to concentrate power in the Council and only have the Commission to deal with. It is unlikely therefore that they would exert too much effort in strengthening the EP, which already fulfilled the symbolic role of representing the people of Europe directly. Likewise, from the point of view of the technocrats, the Commission is where they would like power to concentrate. As the initiators of legislation, the less people they have to persuade the better. Also, since the EP's prime oversight role was over the Commission, they had little to gain from a more vociferous parliament. A strengthened EP would at the very least, be an inconvenience for everyone concerned. Therefore, it would be very optimistic to hope that the EP would be strengthened without some good cause. That cause was provided not by the willingness of Europeans to fight for greater democracy, but by the apathy and lethargy that they showed towards Europe. This forced everyone who had a stake in the European project, including the Member States, to react.

The democratic deficit problem has been summarised by Weiler who identified a number of different issues that are seen as causing it. According to this analysis the EC is 'unresponsive to democratic pressures' What this boils down to is the simple fact that if we don't like what our national governments do, we can vote them out, but if we don't like what Europe does we have no one to vote out. It is a simple argument that seems initially to support an attitude sympathetic to a strengthened EP.

The second issue is that the EC suffers from 'executive dominance' While national executives are tightly constrained by their own parliaments, it seems to be the case that once a decision is to be decided at a European level, it is no longer subject to this scrutiny and the executive can do what they like. Again, it is easy to see how a strengthened EP might fit into this problem.

Another issue is that too many important decisions seem to be made by faceless committees that are established by the Commission and are not democratically accountable to anyone. Parliamentary committees are far more familiar to national voters and it is easier to see how you can hold a parliamentary committee responsible as specific MEPs would bare responsibility for committees under their supervision and could be held responsible. This would require a significant transfer of competences from the Council to the EP.

The other issues identified by Weiler are the 'distance issue', which highlights the fact that most ordinary citizens feel little connection with what goes on in Brussels and find it hard to take a meaningful view on the issues that are being dealt with their. The 'transparency and complexity issue' is closely linked to this, and it has been pointed out that even if citizens were inclined to form issues on Community legislation, they are deprived of the chance of doing so because of a lack of transparency in publicity in the European legislation process. The 'weakening of judicial control issue' is also one that is taken very seriously, especially by certain courts, and deals with the fact that once a power is transferred to Brussels, there is little scope for any constitutional or judicial review of the matter by national supreme courts ever again.

What has emerged from such study is the idea that there is a 'twofold legitimacy on which the Community is founded, its States and its peoples'. While the States are well represented in the Commission and Council, the people are under represented in the Parliament. This understanding has led to a significant strengthening in the role of the EP in the European legislative process.

The Single European Act (SEA) in 1986 marked an end to years of stagnation in the process of European integration. While the completion of the Single Market was its main goal, it also created a new legislative procedure known as the 'cooperation procedure'. While this did not go as far as had been hoped, it did mark the first increase in legislative power for the EP in over thirty years. Up until the SEA, the main method of legislating in Europe was the 'consultation procedure' This involved the Commission proposing a law and the Council voting on it. The only involvement of the EP was that the Council would have to consult it before voting. This however, did not mean that it had to adopt any of the opinions that emerged during the consultation. It is easy to see where the term 'talking shop' came about.

The cooperation procedure varies the consultation procedure by requiring that once the Council has reviewed a Commission Proposal it must adopt a 'common position' that explains the reasons for its position and the views of the Commission. The extra power to the EP is basically that if they do not like the common position they can say so, and the legislation can then only be adopted by a qualified majority in the Council if the EPs views are incorporated. If the Council wished to disregard the EP's proposals, it can only adopt the legislation by unanimity. Given the difficulty of reaching unanimity in the Council, the cooperation procedure gave the EP a useful mechanism for having its views taken into account. Because of the delays that the EP could now cause, it also led to commitment on the part of the other institutions to seek and take into account the views of the EP at every stage of legislation thus giving the EP its first opportunity to be involved in the drafting stage. This procedure now applies mainly to decisions concerned with economic and monetary union.

In 1992, the Treaty on European Union created another legislative procedure that gave the EP an even greater role. This is known as the 'co-decision procedure'. This time, the Commission sends its proposals to the EP and Council at the same time, giving them both an equal chance to review the legislation. The Council then sends its common position to the EP. At this point, for the first time, the EP has the power to reject the common position thus killing the legislation. Alternatively it can accept it or propose amendments. If the EP proposes amendments, which the Council does not accept, then the Council and EP will meet in a reconciliation committee and try to come to a jointly agreed text. If however, the Council cannot get the EP's agreement, the proposal cannot be passed.

This process gives the EP and absolute power to veto legislation. It means that the Commission will only propose legislation that it thinks the EP will approve of, because once it has proposed the legislation, it is up to the EP and Council to come to an agreement. The amendments that the EP may propose represent a significant legislative function. It is no longer limited to commenting on what the other institutions have written, but can add its own proposals. While this is not the same as having a power to initiate legislation which still lies exclusively with the Commission, it does mean that all legislation initiated by the Commission will contain as much input from the EP as from the other Institutions.

The co-decision procedure has become by far the most significant legislative procedure in the Community. It applies to almost all areas where the other two procedures are not specifically stipulated. The EP's position has also been further strengthened by the Treaty of Amsterdam, which provides for expediting the procedure in certain circumstances. What the co-decision procedure has led to in practice is the use of tri-partite meetings between the Council, Commission and EP, which seek to reach agreement on the text of legislation before the process begins and in which all actors are treated as equals. The fact is that unless all three agree on a text, it cannot become law.

This gradual addition of new legislative procedures has transformed the EP into an institution that is an integral part of the Community legislative process. It is no longer possible to maintain that the EP has no power. Apart from the right to initiate legislation, it is now generally regarded as being on an equal footing with the other two institutions.

In the context of addressing the challenges to democratic legitimacy Craig and De Burca have shown how the EP is now arguably as powerful as national parliaments. They claim first of all that 'The idea that national parliaments really control the emergence or content of legislative norms no longer comports with reality.' They also maintain that it is 'by no means self-evident that the EP has less power over the content of legislation than do national parliaments.' They also point to statistics that show that the EP's record of getting its amendments included into legislation compare favourably with those of national parliaments. In fact, if you look at the parliamentary systems in many of the Member States, not least Britain, it can be seen that without executive approval, the parliament has a very poor record of getting its proposals enacted.

Quite apart from its increased role in the legislation process, the EP has simultaneously made important gains in other areas over the years. One such area is the power to challenge to legality of Community acts before the European Court of Justice (ECJ) under Article 230. Article 230 allows people to challenge the legality of Community acts that affect them directly or indirectly. However, article 230(2) contains a list of 'privileged applicants' who by virtue of their status in the Community legal order can challenge all acts of the Community. Article 230(2) reads, '[the ECJ shall] have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on the grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.'

The status of being a privileged applicant is of vital importance and the cases that have been brought under it bear witness to this fact. However, as with most things, the EP had to fight to be included in 230(2). Initially, the EP was not included as a privileged applicant and in the 1987 Comitology case the ECJ ruled that the EP had no right to bring proceedings against the Council even where it was attempting to do so in order to protect its own prerogatives. This decision was changed a year later in the Chernobyl case when the ECJ found that in protecting its own jurisdictions and powers, the EP should be afforded a limited degree of standing as a quasi-privileged applicant. The TEU recognised this by amending 230(2) to state that the EP was a quasi-privileged applicant and finally in the Nice Treaty the text was further amended to its current form which places the EP on an equal footing with the other institutions.

This is just one example of the gradual increase in the recognition that the EP has received in the years since it was founded. Another example is treatment that the EP received in the Treaty Establishing a Constitution for Europe. While the future of this document has been cast in serious doubt, it does represent a picture of the direction in which the EU is likely develop in the coming years.

Article I-19 lists the Unions Institutions, of which the EP is named first. Article I-20(1) sets up the EP, jointly with the Council, as the holder of legislative and budgetary powers. It also confers on the EP the power of electing the President of the Commission.

The Constitution also simplified the legislative procedures in such a way that the transparency was increased while reinforcing the gains that the EP achieved. While the substance of legislative procedures was kept broadly the same as the co-decision procedure, this procedure would apply to even more areas than currently, and in no area have the powers of the EP been reduced or compromised. It is disappointing that the Constitutional Treaty has run into difficulties as it represented a significant step forward for the EP and an improvement over the existing framework.

However, despite this, I think it is fair to say that the EP has gained considerable powers in the years since its formation. These increases have accelerated since the Singe European Act of 1986 and there is a genuine consensus among decision makers that further European integration will have to take sufficient account of the democratic deficit and this will mean a stronger European Parliament.

While at one stage it was true to call the EP merely a 'talking shop' it is now a full institutional member of the European Union that wields significant power.

Bibliography

Textbooks

• Craig and De Burca, EU Law, 3rd ed. Oxford 2002

Articles

• Hartley, The Foundations of European Community Law, 5th ed. Oxford Press
• Westlake, A Modern Guide to the European Parliament, Pinter 1994, 28
• Holland, European Integration from Community to Union, Pinter 1993, 42
• Weiler, European Democracy and its Critique, in Hayward ed. The Crisis of Representation in Europe, Frank Class 1999
• Westlake, The Commission and the Parliament: Partners and Rivals in the European Policy-Making Process, Butterworths 1994
• Boyron, The European Union: How Democratic is it?, Sage 1996

Cases

• Brunner v The EU Treaty [1994] CMLR 57
• Case 302/87, European Parliament v Council [1988] ECR 5615
• Case C-70/88 European Parliament v Council [1990] ECR I-2041

Official Documents

• Scope of the Co-decision Procedure, SEC(96) 1225/4, July 1996 

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