(2) European Union Law

State of the Union 2013 + MEP statements (European Parliament plenary session, 11 Sep 2013)

EUL2

The European Parliament

(b) Parliamentary powers

When the 1951 Paris Treaty set up the European Parliament, its sole function was to exercise “supervisory powers”.24 Parliament was indeed a passive onlooker on the decision-making process within the first Community.

The 1957 Rome Treaty expanded Parliament’s functions to “advisory and supervisory powers”.25 This recognized the active power of Parliament to be consulted on Commission proposals before their adoption by the Council.26

After sixty years of evolution and numerous amendments, the Treaty on European Union today defines the powers of the European Parliament in Article 14 TEU as follows: “The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission.”27 This definition distinguishes between four types of powers: legislative and budgetary powers as well as supervisory and elective powers.

 

(i)                 Legislative powers

 

The European Parliament’s primary power lies in the making of European laws. This involvement may take place at two moments in time. Parliament may informally propose new legislation.28 However, it is not – unlike many national parliaments – entitled to formally propose bills. The task of making legislative proposals is, with minor exceptions, a constitutional prerogative of the Commission.29

The principal legislative involvement of Parliament starts therefore later, namely after the Commission has submitted a proposal to the European legislature. Like other federal legal orders, the European legal order acknowledges a number of different legislative procedures. The Treaties now textually distinguish between the “ordinary” legislative procedure and a number of “special” legislative procedures. The former is defined as “the joint adoption by the European Parliament and the Council” on a proposal from the Commission.30 Special legislative procedures covers various degrees of parliamentary participation. Under the “consent procedure” Parliament must give its consent before the Council can adopt European legislation.31 This is a cruder form of legislative participation that essentially grants a negative power. Parliament cannot suggest positive amendments, but must take-or-leave the Council’s position. Under the “consultation procedure”, by contrast, Parliament is not even entitled to do that. It merely needs to be consulted – a role that is closer to a supervisory function than to a legislative one.32 Exceptionally, a special legislative procedure may make Parliament the dominant legislative chamber.33

Importantly, the Parliament’s “legislative” powers may also extend to the external relations sphere. After Lisbon, Parliament has indeed become an important player in the conclusion of the Union’s international agreements.

 

(ii)               Budgetary powers

 

Parliaments have historically been involved in the adoption of national budgets. For they were seen as legitimating the raising of revenue. In the words of the American colonists: “No taxation, without representation”. In the European Union, this picture is somewhat inverted. For since Union revenue is fixed by the Council and the Member States,34 the European Parliament’s budgetary powers have not focused on the income side but on the expenditure side. Its powers have consequently been described as the “reverse of those traditionally exercised by parliaments”.35

Be that as it may, Parliament’s formal involvement in the Union budget started with the 1970 and 1975 Budget Treaties. They distinguished between compulsory and non-compulsory expenditure, with the latter being expenditure that would not result from compulsory financial commitments flowing from the application of European law. Parliament’s powers were originally confined to this second category. The Lisbon Treaty has however abandoned the distinction between compulsory and non-compulsory expenditure, and Parliament has thus become an equal partner, with the Council, in establishing the Union’s annual budget.36

 

 (iii) Supervisory powers

 

A third parliamentary power is that of holding the executive to account. Parliamentary supervisory powers typically involve the power to question, debate, and investigate.

A soft parliamentary power is the power to debate. To that effect, the European Parliament is entitled to receive the “general report on the activities of the Union” from the Commission,37 which it “shall discuss in open session”.38 And as regards the European Council, the Treaties require its President to “present a report to the European Parliament after each of the meetings of the European Council”.39 Similar obligations apply to the European Central Bank.40 The power to question the European executive is formally enshrined only for the Commission: “The Commission shall reply orally or in writing to questions put to it by the European Parliament or by its Members.”41 However, both the European Council and the Council have confirmed their willingness to be questioned by Parliament.42 Early on, Parliament introduced the institution of “Question

Time” – modeled on the procedure within the British Parliament.43 And under its own Rules of Procedure, Parliament is entitled to hold “an extraordinary debate” on “a matter of major interest relating to European Union Policy”.44

Parliament also enjoys the formal power to investigate. It is constitutionally entitled to set up temporary Committees of Inquiry to investigate alleged contraventions or maladministration in the implementation of European law.45 These (temporary) committees complement Parliament’s standing committees. They have been used, inter alia, to investigate the (mis)handling of the BSE crisis.

Finally, European citizens have the general right to “petition” the European Parliament.46 And according to a Scandinavian constitutional tradition, the European Parliament will also elect an “ombudsman”. The European Ombudsman “shall be empowered to receive complaints” from any citizen or Union resident “concerning instances of maladministration in the activities of the Union institutions, bodies or agencies”. S/he “shall conduct inquiries” on the basis of complaints addressed to her or him directly or through a member of the European Parliament.47

 

(iii)             Elective powers

 

Modern constitutionalism distinguishes between “presidential” and “parliamentary” systems. Within the former, the executive officers are independent from Parliament, whereas in the latter the executive is elected by Parliament. The European constitutional order sits somewhere “in between”. Its executive was for a long time selected without any parliamentary involvement. However, as regards the Commission, the European Parliament has increasingly come to be involved in the appointment process.

 

Today, Article 17 TEU describes the involvement of the European Parliament in the appointment of the Commission as follows:

 

Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members . . . The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States . . . The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.48

The appointment of the European executive thus requires a dual parliamentary consent. Parliament must – first – “elect” the President of the Commission. And it must – secondly – confirm the Commission as a collective body. (Apart from the President, the European Parliament has consequently not got the power to confirm each and every Commissioner.)49 In light of this elective power given to Parliament, one is indeed justified in characterizing the Union’s governmental system as a “semi-parliamentary democracy”.50

Once appointed, the Commission continues to “be responsible to the European Parliament”.51 Where this consent is lost, Parliament may vote on a motion of censure. If this vote of mistrust is carried, the Commission must resign as a body. The motion of collective censure mirrors Parliament’s appointment power, which is also focused on the Commission as a collective body. This blunt “nuclear option” has never been used.52 However, unlike the appointment power; Parliament has been able to sharpen its tools of censure significantly by concluding a political agreement with the Commission. Accordingly, if Parliament expresses lack of confidence in an individual member of the Commission, the President of the Commission “shall either require the resignation of that Member” or, after “serious” consideration, explain the refusal to do so before Parliament.53 While this is a much “smarter sanction”, it has also never been used due to the demanding voting requirements in Parliament.

Parliament is also involved in the appointment of other European officers. This holds true for the Court of Auditors,54 the European Central Bank,55 and the European Ombudsman.56 However, it is not involved in the appointment of judges to the Court of Justice of the European Union.

 

24. Article 20 ECSC.

25. Article 137 EEC.

26. Roquette Frères v. Council (Isoglucose), Case 138/79, [1980] ECR 3333.

27. Article 14 (1) TEU.

28. Article 225 TFEU: “The European Parliament may, acting by a majority of its component Members, request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Treaties. If the Commission does not submit a proposal, it shall inform the European Parliament of the reasons.”

29. On this power, see Chapter 2 - Section 1 (a) below.

30. Article 289 (1) TFEU.

31. For example: Article 19 TFEU, according to which “the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on

sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.

32. For example: Article 22 (1) TFEU, which states: “Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament[.]”

33. For example: Article 223 (2) TFEU – granting Parliament the power, with the consent of the Council, to adopt a Statute for its Members.

34. See Article 311 TFEU on the “Union’s own resources.”

35. D. Judge and D. Earnshaw, The European Parliament (Palgrave, 2008), 198.

36. Article 314 TFEU.

37. Article 249 (2) TFEU.

38. Article 233 TFEU.

39. Article 15 (6) (d) TEU.

40. Article 284 (3) TFEU.

41. Article 230 TFEU – second indent.

42. The Council accepted this political obligation in 1973; see Jacobs, The European Parliament (supra n. 20), 284.

43. Rule 116 Parliament Rules of Procedure. For acceptance of that obligation by the Commission, see Framework Agreement on relations between the European Parliament and the European Commission, [2010] OJ L304/47, para. 46.

44. Rule 141 Parliament Rules of Procedure.

45. Article 226 (1) TFEU. For a good overview of the history of these committees, see M. Shackleton, “The European Parliament’s New Committees of Inquiry: Tiger or Paper Tiger?”, 36 (1998) Journal of Common Market Studies, 115.

46. According to Article 227 TFEU, any citizen or Union resident has the right to petition the European Parliament “on any matter which comes within the Union’s field or activity and which affects him, her or it directly”. See also Article 20 (2) (d) TFEU.

47. Article 228 TFEU.

48. Article 17 (7) TEU.

49. However, Parliament may request each nominated Commissioner to appear before Parliament and to “present” his views. This practice thus comes close to “confirmation hearings” (Judge and Earnshaw, The European Parliament (supra n. 35), 205).

50. P. Dann, “European Parliament and Executive Federalism: Approaching a Parliament in a Semi-Parliamentary Democracy”, 9 (2003) European Law Journal, 549.

51. Article 17 (8) TEU.

52. Once, however, the European Parliament came close to using this power when in 1999 it decided to censure the Santer Commission. However, that Commission chose collectively to resign instead.

53. Framework Agreement (supra n. 43), para. 5. However, this rule had been contested by the Council; see Council Statement concerning the Framework Agreement on relations between the European Parliament and the Commission ([2010] OJ C287/1).

54. Article 286 (2) TFEU.

55. Article 283 (2) TFEU.

56. Article 228 (2) TFEU.

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