lecture 10: EU institutional triangle, political power and democratic control

the EU as a legal system

• based on Treaties between member states

• producing legislation: regulations, directives and decisions

• producing non-legislative guidelines

• governed by a set of procedures and reviewed by a system of courts

the EU as a political system

• based on general agreement that certain aims should be pursued together

• requiring permanent negotiation on compromises between a large number of different interests

• taking decisions on legislation and general political direction

the EU as a community of values

• based on agreement on certain core values/principles enshrined in the Treaties

• informal practices requiring permanent re-balancing/re-negotiation

• legal and political elements

• trying to ensure that values are respected through legal, political and other means

the EU as a cultural space

• based on shared ideas about elements of European identity and culture as distinct from ‘others

• not really formalised

• under permanent discussion/construction

• hotly contested (culture wars)

• supporting both common EU culture and respect for cultural diversity

the EU as an economic system/area

• based on the EU treaties and other agreements

• supposedly open towards the world (free trade)

• distinct interests/values/procedures

• adopting legislation for a common framework

• supporting particular economic activity

• negotiating at global level

what is the EU supposed to do?

• TEU: overall aims, values and principles (TEU preamble, arts 1-6)

• specific policies: special case CFSP (TEU art 21-22), CSDP (TEU art 42)

• TFEU: other policies = arts 2-6 + general provisions arts 7-17 TEU

• detailed policies: TFEU arts 18-196, 206-214 (external relations)

how is the EU supposed to do things?

• Democratically: Democratic principles (Arts 7, 9-12 TEU), through ‘sincere cooperation between MS’ (Art 4 TEU)

• ‘within the limits of the competencies conferred’ + subsidiarity + proportionality (Arts 4, 5 TEU)

• Through a set of institutions (Arts 13-19 TEU + 223-309 TFEU)

• By adopting ’legal acts’ (Arts 288-292 TFEU)

• By spending money (EU Budget) (Arts 310-325 TFEU)

• By creating an ‘open, efficient and independent European administration’ (Art 298 TFEU)

how are decisions taken in/by the EU

• Involving citizens (TEU Arts 10-12) and respecting fundamental rights (Arts 2, 6 TEU)

• Different forms of cooperation between the EU institutions, varying according to different policy areas (and specified in the relevant policy article)

• In most policy areas except external relations: by the ”ordinary legislative procedure” (Art 284 TFEU)

what are the 7 EU institutions listed in art 13 TEU

• Euroepan parliament

• european council

• the council (of ministers)

• the european commission

• the court of justice of the European union

• the european central bank

• the court of auditors

what are the 7 bodies of the EU

• European External Action Service (EEAS)

• European Economic and Social Committee (EESC)

• (European) Committee of the Regions (COR)

• European Investment Bank (EIB)

• European Ombudsman (inter-institutional)

• European Data Protection Officer, European Data Protection Board

what other agencies does the EU have

• +/- 35 Decentralised Agencies

• ± 10-15 Executive Agencies/ Joint Undertakings/
  Serices/ inter-institutional structures

the European parliament

• art 14 TEU

• elected by EU citizens = representation

• legislative and budgetary functions shared with council

• political control

• consultation

• max 750 members (currently 720)

• 5 year electoral term

• degressively proportional representation

• minimum 6 MEPs per country, max 96

• council decides unanimously on composition of European parliament

european council

• art 15 TEU

• provides necessary impetus, general directions and priorities for the EU

• does not exercise legislative functions

• composed of heads of state or government

• ‘normally’ decides by consensus

• elects president for 2,5 years by QMV

the Council

• art 16 TEU

• exercises legislative and budgetary functions jointly with EP

• policy-making and coordination funcitons

• composed of one member per state at ministerial level

• normally acts by QMV (55% of members, 65% of population

• “blocking minority” = at least four Council members

• meets in 10 configuarations

• General Affairs Council (GAC) (foreign ministers) coordinates

• supported by Committee of permanent representatives (COREPER)

• rotating 6 months presidency (except for Foreign Affairs)

the European Commission

• art 17 TEU

• promotes ‘general interests of the union’

• composed of one commissioner per member state

• president proposed by European council through QMV, ‘taking into account the EP elections’ – EP elects

• president (with Council) proposes list of other Commissioners incl. HRFA (to be approved by EP)

• ensures application of the Treaties/EU law

• executes the budget

• coordinating, executing, management of programs

• represent EU externally (except CFSP)

• monopoly on proposing EU legal acts

court of justice of the EU

• court of justice, general court and specialised courts

• one judge from each MS + advocates general

• rules on actions brought by MS, an institution, a natural or legal person

• gives preliminary rulings on interpretation of EU law at request of national courts

scheme functioning of the EU

democratic structures and processes ensure that decisions

• are based on a right of all (relevant) voices to be heard

• can be understood

• are taken by transparent procedures

• represent the majority view

• protect minority positions

every decision has

winners and losers = compromise system

EU decision making key principles

• compromise = between MS, between and within institutions, between individuals, groups, stakeholders

• voluntary commitment = MS can leave => tend to seek consensus but differentiation is possible (ex Euro-membership, Schengen)

• loyal cooperation = between MS and between institutions

• dual logic of representation and democratic control = EP represents citizens, council represents governments => EU = union of states and people

• special separation of powers

what does the separation of powers look like in the EU

• council has legislative and some executive functions (CFSP)

• EP has legislative role (jointly with Council) but so far no right of initiative, confirms (≠proposes) commission president

• commission proposes legislation and executes policies/budget, relies for much of executive powers on MS

• European council provides general orientation but is not subject to parliamentary control

what was the original institutional structure for the European Coal&steel community?

• a supranational high authority

• an intergovernmental council of ministers = was taking the main ‘political’ decisions in a Community of 6 member states (3 large, 3 small, but all liberal market economies in post-war boom)

• a weak parliamentary assembly of national MPs

• a court to arbitrate conflict

what was so special about the nature of the ECSC decision-making?

a narrow set of (important) executive decisions was delegated to a new kind of structure beyond direct national control = to the High Authority

+ the system is given the task to '“develop the system further”

what does the widening refer to?

growing number of players

what does the deepening refer to?

growing complexity and ‘sensitivity of decisions for national sovereignty

Why did the system of the ECSC need to change?

• widening

• deepening

• growing need for democratic legitimacy

=> continuous need for adapting, improving and reforming the system informally and formally

=> inter-institutional competition

permanent debate about “effecdtiveness”, “democracy” and “tansparency”

what does the EU do?

• degining common objectives and how to reach them => treaty making, strategic agenda = MS/European Council, EP, Commission

• adopting common rules for all MS => legislation = commission, EP, council

  —> different instruments

  —> execution largely dependent on MS

• coordinating policies essentially done by MS (council, commission)

  —> comparing policies, peer-review, naming-and-shaming

  —> facilitating learning

• spending/redistributing money through the EU budget = council, EP, Commission

  —> raised through some own resources but mainly MS contributions

  —> principle of co-financing for EU projects (NextGenEU)

• representing the MS towards the outside world and/or facilitating common positions of MS in the international arena = commission, council

  —> common EU role/position in international trade

  —> different system for CFSP/external action

what are the different instruments for legislation?

regulations, directives, decisions, recommendations

what are the 6 possible EU decision procedures?

• consultation procedure

• ordinary legislative procedure

• consent procedure

• budget procedure

• installation of the new commission

• consure of the commission

consultation procedure

• art 289 TFEU

• commission proposes, EP is just consulted

• areas where commission has strongest powers (ex competition policy)

ordinary legislative procedure

• art 294 TFEU

• commission proposes, EP and council decide together (in compromise)

• most areas of legislation, unless specified otherwise

consent procedure

• commission proposes, EP has to say yes or no but cannot change the proposal

• association/trade agreements, enlargement/withdrawal agreements, serious breaches of fund

budget procedure

• commission proposes, EP approves multi-annual financial framework

• EP and Council jointly agree on annual budget (arts 312-19 TFEU)

installation of the new commission

council proposes (taking into account EP elections), EP approves

censure of the commission

EP starts the procedure, needs 2/3 majority to force commission to resign

what are constitutional politics?

enlargement, Future of Europe debate

steps before ordinary legislative procedure

1. identifying a problem to be tackled at EU level

   a. treaty objectives = EU should do sth about…

   b. MS ask EU to do sth

   c. EP asks EU to do sth

   d. citizens ask EU to do sth = European Citizens' Initiative

   e. other forces push EU to do sth

   f. circumstances/events require (re)action

2. identifying how to react —> is legislation the right tool?

3. key role for the European commission = ‘monopoly of initiative’

4. if legislation is the right tool => formal process begins

what is the institutional triangle?

the three institutions (EP, Council and EC) co-decide on legislation though trilogue

• commission proposes

• EP has ‘first’ reading and proposes changes

• Council has first reading and decides if it wants to accept changes proposed by EP

=> Yes? = legislation adopted

=> no? = EP and Council negotiate + Commission tries to ‘broker’ a compromise

what are the steps in the ordinary legislative procedure?

1. commission consults formally/informally experts, public,…

   => choses legal basis (scope + procedure)

2. proposal goes to EP and Council + national parliaments, consultative committees,… informed

3. first reading

   • EP adopts its position and informs Council

     —> if council approves = act adopted

     —> if council wants changes = it adopts its first reading position (+reasoning)

   • commission comments yes/no on proposed changes

4. second reading

   • EP can within 3 months:

     a. accept Councils decision or not decide => act adopted

     b. reject Council decisions by a majority of its members => act falls

     c. propose changes => proposal goes back to council/commission

   • Council can within 3 months by QMV

     a. adopt all proposed amendments => act adopted as changed

     b. not adopt all changes => concilitation committee is set up within six weeks = 27 MS representatives + 27 MEPs + commission

5. third reading

   • EP and council both need to agree to conciliation text

   • if joint text is approved: EP (majority) and council (QMV) approve text

6. legislation is communicated to MS + implemented (joinly by MS & EU level

7. legislation is ‘evaluated’ and (possibly) reviewed, revised = policy cycle

What are the legislative priorities of the Commission?

• adopted jointly by EP, Council and Commission

• commission works according to this set of priorities for its full mandate

  and works each year according to the priorities laid out in the Joint Declaration

• the Commission drafts from this the Annual Work Program = new legislation, revision of legislation, withdrawal of legislation

• on the basis of the annual work program, the responsible directorate general (led by a Commissioner) prepares new proposals

what are Green Papers and White Papers?

policy documents published by the European Commission to stimulate discussion, gather feedback, and outline potential future legislation or policy initiatives within the European Union.

what does formal consultation include

MS (experts), stakeholders, civil society, the general public

what must a legislative proposal by the commission contain?

• clear description of the problem to be tackled = why? how? alternatives?

• roadmap for following steps

• impact assessments according to various economic, social, territorial,… criteria

• projections of cost

• subsidiarity/proportionality

• draft legislation = first discussed internally through inter-service consultation, then made public and then officially tabled and sent to co-legislators

• possibly staff-working-document/annexes

what does collegiate decision-making mean?

all 27 commissioner must officially support each proposal but in reality the commission does vote

how has the OLP changed over the years?

• decisions are being made more and more by informal agreement at first reading

• growing importance of the Trilogues

• COM tries to ‘anticipate’ positions/ conflicts + gives view on EP proposed amendments

• Council votes by QMV on amendments on which COM is positive, by unanimity on amendments on which COM is negative

  => ‘advantage’: time limits (3 months/ 6 weeks for 2nd reading) do not apply (BUT: this means first readings take longer)

  => disadvantage: less transparent?

Who decide on the appropriate council formation?

council presidency/council secretariat

What is the role of the rotating council presidency?

• chairs discussions

• can prioritise files

• sets agenda

• tries to broker compromises

which Council body prepares proposals for a reponse to the Commission/the EP

Council Working Parties/Committees with the help of the Commission

Which council bodie approves/adopts response proposals?

the Committee of Permanent Representatives (COREPER)

• COREPER I (part I agenda) = proposals with low level of conflict = straightforward or technical issues => representatives nodd through (agree easily)

• COREPER II (part II agenda) = high level of conflict = more contentious, politically sensitive or complex issues => discussion

after decision, proposal can be:

a. passed back down = back to a lower-level working group or back to the Commission for adjustments.

b. move up to political level = a Council configuration meeting

Do council proposals usually involve a lot of debate?

no, Council adopts about 2/3 of proposals without discussion – 1/3 with further debate (occasionally reaches out to European Council…)

which actors can be involved in the OLP?

✓ EU institutions (major/minor, formal role in the process)
✓ National institutions (Governments, Parliaments)
✓ Brussels ‘bubble’: stakeholders, lobbyists
✓ Media/ the public
✓ Third parties (global partners/competitors, international institutions)

Which issues can be at stake in the OLP?

✓ Policy area(s) + related level of competence
✓ (pre-)history of policies/politics, conflicts, salience
✓ general interest or individual concern
✓ Timing (electoral cycle, institutional cycle, individuals…)
✓ Openness to influence/ exchange – Transparency
✓ Democratic Control, legitimacy