2007/2008 University of Kent
Decision-making in the EU
Second Essay, 3846 words
How influential is the European Parliament in EU decision making?
The European Parliament has changed substantially since its creation. When it was created in 1952, it was only a controlling assembly composed by representatives of different national parliaments. With the direct election of Members of European Parliament (MEPs) which started in 1979 and the strengthening of the importance of affairs dealt with by the EU, the change of its function was ineluctable.
Many argued that there was a democratic deficit within the European Union (EU). As the European Parliament (EP) started to be elected by the citizens, more and more politicians started to argue that the democratic legitimacy of the EU manifested itself within this institution. Therefore, the powers of the EP have been strengthened.
Even before 1979, the EP was seen as the most democratic institution of the EU. Its empowerment began with the ratification of the Treaty of Rome. In article 137 of the treaty it is stated that the EP has a control and deliberation power. Article 138 also adds that the EP also has an initiative right, whilst article 142 speaks about a self-organisation right. Treaties signed on the 21st of April 1970 and on the 22nd of 1975 give supplementarily budgetary powers to the EP. The Single European Act provided it decision powers.
However the decisive step was made when the Maastricht Treaty came into effect in 1993. This treaty removes the artificial distinction between control and deliberation power (they include both deliberation and decision). New article 137 speaks about legislative, budgetary, external relations, nomination and consultative powers. The co-decision procedure is the main new provision of this treaty strengthening the EP. The Amsterdam Treaty enlarges the applicability of the co-decision procedure.
So, how influential is the EP now? Can we say that it moved from a symbolic institution which had mainly consultative power to a powerful body to be considered equal to the European Council and the European Commission? What is the black letter rule and are its implications?
We will first see what the theoretical powers which can be used by the EP are. We will then analyse the informal legislative power of the EP. We will show that the influence of the EP is not equal all the time and try to examine when the EP is more influential. We will conclude speaking about the EP influence and the legitimacy of EU actions.
I) What are the legal weapons that can be used by the European Parliament to influence EU decisions?
There are several different models evaluating EP’s powers. There are procedural theories which can be divided into formal and informal theories. There are also bargaining models. We will not analyse it into details, we will just say that different models should be combined and that formal as well as informal powers should be considered. Starting with formal powers is logical as the pratice cannot be explained without a clear description of the theory.
The European Parliament has a legislative power. There are different procedures through which the EP is involved in the legislative works of the European institutions. The Rome Treaty established the consultation procedure. Much used at the beginning, it became progressively sidelined. The consultation procedure is not precisely defined in the treaty, indeed it is not codified at all. At the beginning, the consultation was virtual: the Council only informed the EP about the legislation it has accepted- the EP made a statement about it but the Council was free to ignore it. Only later, in the late 60s, did the Council decided to inform the EP about why it hasn’t taken into account its input.
Co-operation has been created by the European Single Act. It was supposed to be a strengthening consultation procedure. It is a re-consultation with two readings. This means that if the Council changes substantially its initial proposition, it has to consult the EP one more time. Moreover, it enabled bipolar games with the Commission and with the Council. This procedure can be summarised as a seven-step process. First, the Commission proposes a text. Then, the EP makes its first reading amendment which is followed by the Commission review of this amendment. The Commission can incorporate the amendments it wishes to propose. The Council can adopt this position by qualified majority or modify it by unanimity. The Parliament can amend this new proposal (second reading) and then the Commission chooses to incorporate it or not. The Council makes the final decision. Qualified majority is required to adopt the text and unanimity to amend it. Co-operation concerned one third of the legislation at its creation but it also became sidelined. It has jurisdiction over only some topics related to the Economic and Monetary Union presently, and will disappear soon. But it must be mentioned because it led to co-decision. The amendments proposed by the EP started to be considered seriously by the Council already at the time of co-operation.
However, the main procedure through which the EP has a say is the co-decision. This procedure, created by the Maastricht Treaty, makes the Council and the EP equal partners. During the first two readings the Parliament and the Council consider amendments of each other institution. This is followed by the conciliation committee meetings during which representatives of the Council and of the Parliament (in equal number for both institutions) discuss the problem. This committee has to agree on a joint text. “Subsequently, this joint text has to be endorsed by both institutions in their third readings.” The Amsterdam Treaty modified the procedure significantly. With the Maastricht system, the Council had the right to introduce one more time its previous common position in the last reading if no agreement has been found in the conciliation committee. In other words, the Commission could override the EP (‘take-it-or-leave-it’). In contrast, under the Amsterdam provisions, the European Parliament has exactly the same formal powers as the Council.
This procedure has grown in importance since 1993. The applicability has been widened by the Amsterdam Treaty. There was a subsequent increase in the legal acts adopted through the co-decision procedure. 403 texts were enacted through this procedure between 1999 and 2004. This is two and a half times higher than during the previous legislature. There are still more and more co-decision reports. The annual number rose from 33 to 80. It is argued that the development of co-decision was coupled with an increase of the influence of the EP within the framework of this procedure. The rate of amendments accepted as a compromise rose from 26 per cent to 59 per cent between 1993 and 1999. According to the EP, the impact has also been qualitative. The Parliament argues that it enabled to itself to improve the standard of living of European citizens. It sees six essential points in this matter: strengthening of norms, equilibrium between rights and obligations of the citizens, extension of the applicability of the activities of the EU, increase of the resources of the EU, control of the implementation of the legislation and organisation of a larger public debate.
The Amsterdam Treaty foresees a decrease in the the number of procedures of decision making from twenty-two to three. As it has been seen above, the co-operation procedure will be removed. After having seen the consultation procedure and the codecision procedure, we will present briefly the third remaining form of decision-making: assent. It is a simplified co-decision procedure in which the EP does not have the right to propose amendments. It is a formalised parliamentary veto right.
All the procedures we have seen above concern only amendments, approvals or rejection of legal acts and nothing is said about the initiative right of the EP. In fact, this is quite limited. At the beginning, it was almost non-existant. Then, the EP fought strongly to progressively gain some initiative power. MEPs decided very early that parliamentary commissions will have the possibility to write reports going with resolution proposals. It used this opportunity to attract the Commission attention on some precise points. The Commission accepted in a communication of 1981 to consider these propositions. The first case when the EP used this procedure with an important impact concerned seal baby skin importation ban. This iniative found an important interest in the society and more than 1 000 000 people signed a petition approving it. The Council and the Commission were initially opposed to this ban but they were finally obliged to pass a resolution. The Amsterdam Treaty formalised this initiative right but its application is limited.
Since 1975, the EP has also had important budgetary power. You can categorise this into four groups: the right to increase and to decrease the general amount of the budget, the right to transfer credits from a budgetary line to another, the right to reject the annual budget and to have a say in its management. However, this budgetary power is hugely limited by the fact that it cannot vote on the revenues of the Union. An important distinction is made between non-mandatory expenses and mandatory expenses. Non-Mandatory expenses concern mainly the Common Agricultural Policy (CAP) and the Council has the last word to say about it. Non-mandatory expenses concern, among other things regional and social funds, energy, research, transportation, development aid, environmental and education policies and the EP has the last word to say about it. As the CAP is declining and research and education policies are seen as the policies of the future, it is said that the EP will be more and more influential.
The European Parliament also has other powers such as nomination powers, approval or rejection right of the President of the European Commission and of the European Commission as a whole, and specific powers in the second and the third pillar. But the author will restrain his domain of research to the budgetary and legislative powers. He will focus especially on its legislative power because it seems to be the EP’s most powerful attribute and as its amendments are numerous there are many data to examine in this field.
So, as we have seen, formal powers of the European Parliament have increased crucially in the last decades. The impressive emergence of the codecision procedure enabled the EP to be as important as the Council in the legislative process. The decline of the CAP means more control of the EP on the budget. However, We must assess now whether the EP really became as influential as the treaty says and analyse the place of the EP in informal processes.
II) The influence of the European Parliament in practice
Of course, the legal framework doesn’t always reflect the reality. The almost perfect equality between the Council and the Parliament in the law can turn into the advantage of the Council because of political pressures or the limited means of the EP.
First, we can imagine that amendments made by the European Parliament are insignificant, but a study made by Tsibilis and Kalandrakis reveals that less than 30 per cent of EP amendments are insignificant. It shows also that 15 per cent of them are crucial. People who claim that the power of the EP is still very limited think that accepted amendments are mainly these that have a low importance. But this study reveals that the likeliness of their acceptance is the same regardless of their importance. In the sample examined by these scholars the rate of acceptance reaches 56 per cent, which is high. However, this optimism has to be balanced. Tsibilis and Kalandrakis consider that the fact that 30 per cent of EP amendments that are insignificant is low and that 15 per cent of are crucial is high but this is debatable. Moreover, they argue that the probability of adoption of those amendments is the same regardless of their importance but Amie Kreppel reveals that “by far the most significant variable affecting eventual adoption by [...] the Council is the type of amendment”. The EP amendement is more likely to be accepted when it concerns clarification than when it is more substantive. There is also a huge gap in probability of acceptance between classification and extension amendments. Proposals that extend the area of application are less likely to be adopted. This gap concerns also the difference between extension and policy. Amendments that propose a new policy dimension are less likely to be adopted than extension ones. Furthermore, Amie Kreppel claims that amendments concerning the recitals are more likely to be adopted by the Council than amendments changing the text. Recitals are very often general and don’t have any practical consequence. These divergent results can be explained by the fact that both studies don’t use the same data and the same criteria. Therefore, no clear conclusion can be made about this.
Informal working is very important in the co-decision procedure. It enables decisions to be made faster, to take more effective actions and a greater interaction between institutions. Julie Garman and Louise Hilditch have observed the informal processes at work in conciliation. They argue that the numerous contacts between representatives of different institutions enables easier compromises to be found. And in negotiating these compromising, the EP is very effective.
Actually, the EP has better resources than the Council in negotiating. The Council has restricted resources in time and personnel. “The Council is represented in conciliation mainly by the deputy ambassadors of the Committee of Permanent Representatives, which are at the same time responsible for overseeing and co-ordinating the work of dozens of working groups and preparing the minister meetings in six policy areas covering the bulk of Community legislation.” The Council is not able to follow all the files, it has to limit its attention to the most important issues. In contrast, the EP has twenty different standing committees. They all have a larger number of staff. This means that the Council will be more likely to privilege a shorter procedure which obliges it to make generous compromises.
It is why the EP has more influence when the agreement is reached under so called “trilogue” than under conciliation. The trilogue (bargaining between the EP, the Commission and the Council) is an informal stage which takes place before the conciliation committee meeting. As trilogue is an earlier stage of bargaining than conciliation, if an agreement is reached at this stage, it means that the Council must hurry and prefers to reach an agreement quickly than to reach the closest possible agreement to its view. The EP knows it perfectly and uses this advantage. Actually, the Parliament is even more powerful than the Council when the agreement is reached in trilogue. As agreements are more and more reached at the trilogue stage (under the Maastricht provisions, the conciliation committee was necessary for 40 per cent of the files and this has gone down to 22 per cent for the 1999-2004 period), the Parliament gains in influence.
The fact that the EP has more influence in early stage is confirmed by the fact that first reading amendments are more likely to be adopted by the Council than second reading amendments. In the Amie Kreppel study it is 13 per cent less likely to be adopted by the Commission and 11 per cent less likely to be adopted by the Council.
III) Variations in influence
There is no doubt that the EP became very influential. However, its influence depends on several factors, this influence is not the same all the time. As we have seen, codecision became the main and the most powerful weapon of the EP. But, as Amie Kreppel shows, even at the time of the cooperation procedure, it had a huge influence. She stresses that between 1987 and 1993, there were 4572 amendments proposed by the Parliament and that 2219 of them (48 per cent) have been accepted by the Commission and the Council through the cooperation procedure. However, if you categorize these amendments, you realize that they are not all as likely to be approved. First, whereas European legal acts are supposed to be adopted by the Parliament and by the Council, the complicity between the Parliament and the Commission is essential. If the Commission adopts an amendement, it is more likely to be adopted by the Council. In fact, if the Commission doesn’t accept it, the Council can do it only under unanimity. The Commission is generally seen as closer to the EP because of its supranational character. Therefore, these two institutions can cooperate to be stronger than the Council. The EP is much more influential with the support of the Commission than without it.
The internal unity of the EP is also a factor of its strength. As several political forces are represented in the EP (liberals, conservatives, greens...), the Council and the Commission tend to think that there is nothing controversial in amendments approved by all the main parties. Therefore, there are more likely to accept it.
There is also a variation in amendments success between different areas. “Amendments on proposals from the committees on the environment, public health and consumer protection were significantly less likely to be adopted.” In contrast, the probability that those emanating from the committees of legal affairs and citizens’ rights were accepted was 20 per cent more likely.
III) The European Parliament power, democracy, legitimacy and independence
As we have seen, the EP has been strengthened formally as well in Maastricht as in Amsterdam. Christiane Kasack argues that the real step has been made in Maastricht and not in Amsterdam. It shows that changes in formal rules do not have mandatory an impact on informal rules. Kasack says that rate of EP amendments adoption remains unchanged between Maastricht and Amsterdam. On the legislative acts he takes 40,3 per cent of the EP’s amendments made during co-decision I (Maastricht) and 42,1 per cent of the EP’s amendments made during co-decision II (Amsterdam) have been accepted by the Commission and the Council. This difference is not significant therefore we agree with Kasack. But we have to be careful with such conclusions because he takes just eight legal acts and nothing tells us whether they are representative. Some other scholars reach another conclusion about this question. This is an important matter because the question we ask is not only whether the EP is influential but also whether it will become more and more influential. If the EP’s power has been regularly strengthened in the last decades, it is likely that it will still be strengthened because it is the general tendency. But if it really doesn’t increase anymore even if formal powers are added, it means maybe that the EP powers have reached their maximum and that it is just not able to go beyond this maximum. A sad conclusion has to be considered: that, whereas we try to give more and more power to the EP to increase the legitimacy of the EU, it is an artificial and impossible tendency we try to build. This conclusion has not been proved and some scholars would deny it. However, only the fact that the question arises shows that the link between giving more formal power to the EP, making it more influential and increasing the legitimacy of the EU, is not obvious.
This question of why we try to make the EP more influential and of whether we reach this goal is also important. It is said that the EP is a democratically elected institution and that giving more power to it increases the legitimacy of the EU but we have to consider also that the EP is particularly effective when the agreement is reached at the trilogue stage which is characterised by secrecy. Secrecy is the enemy of transparency and transparency is one of the factors of legitimacy. Therefore, it is not obvious whether the legitimacy of the EU has been strenghthened by the empowerment of the EP.
The independence of the EP is an important factor of its democratic legitimacy (but also of its real strength). We can consider the case of the European budget to verify whether the EP can be seen as an indepedent institution. The EP is of course a single actor but we will consider it here as a group of different actors: the MEPs. MEPs belong to European parties which have an ideology. This means that they have different behaviours corresponding to their partisan affiliation and can vote differently. Whereas on the one hand it can weaken the influence of the EP because as we have seen the EP internal unity strengthens its influence. On the other hand it is a factor showing that they are free to vote according to their beliefs which is a sign of independence. However, ideology is not the only one factor affecting MEPs behaviour. They also are influenced by the national parties positions. If a MEP belongs to a national party which supports the national government, it is likely that it will vote in accordance with his government vote in the Council during discharge vote. Not only does this weaken the EP’s position (making it dependent and not influential on the Council), but it also discredits its independence. Unfortunately, the national ties do not link only MEPs with the Council but also with the Commission and to be more precise with the Commissioneers coming from their countries. So, the question is not only how influential the EP is but also how influenced it is.
The European Parliament became a real legislative and budgetary body of the European Union. This could not be possible of course without the formal powers given to it in different treaties but it would not be also possible without a strong will from the European Parliament. It gave to itself an initiative right, it used different procedures optimally and interpreted all the imprecise provisions in its favour. The European Parliament has an advantage towards the Council in informal bargaining as it has more time and personnel even if it could seem at first glance that the Council should have a personnel advantage because it has 27 governments behind itself (but all the civil servants of these governments are not present at inter-institutional meetings!). The fact that the Commission is more likely to share its view than the Council’s one makes a situation in which very often two institutions including the Parliament oppose the third institution’s view. And these two institutions together are stronger than the Council.
But this convergence of views is not obvious and even less automatic. Finding a common agreement is even sometimes problematic within the European Parliament. And the lack of internal unity weakens the EP’s influence. The strength of the EP is not equal in each area. Some studies show that crucial amendments are less likely to be adopted.
Moreover, the idea that the EP still knows how to strengthen its power is questionable. Even if it is helped by the Council which is very generous with it in the treaties (the Lisbon Treaty extends the co-decision procedure to 95 per cent of the legislation), the EP is maybe not able to gain more influence because it reached already its apogee.
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