(3) What the EU is for?

 

The EU institutions explained by their Presidents

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How the EU is governed

The EU has major economic and environmental powers, and is increasingly active in foreign policy, defence, and internal security. How is this power used and controlled? How is the Union governed? The answer, according to many intergovernmentalists, is through cooperation among the governments of member states: the other institutions are peripheral to the Council in which the governments are represented, and this fact will not go away. But while the Council is still the most powerful institution, federalists regard the Parliament, Commission, and Court of Justice not only as sufficiently independent of the states to have changed the nature of the relationships among them, but also as major actors in a process that may, and should, result in the Union becoming a federal polity.

The European Council and the Council

The Council consists of ministers representing the member states; and at the highest level there is the European Council of Heads of State or Government together with the President of the European Council and President of the European Commission. Heads of state are included in the title because several presidents participate as well as their prime ministers, since they have some of the functions performed by heads of government elsewhere.

The European Council meets three or four times a year and takes decisions that require resolution or impulsion at that political level, sometimes because ministers have been unable to resolve an issue in the Council, sometimes because a package deal involving many subjects, such as a major amending treaty or a seven-year financial perspective, has to be assembled. The European Council also has to ‘define general political guidelines’. Its rotating presidency is an important function, both for the management of current business and for launching new projects.

The President of the European Council is the closest that the Union has come to a national equivalent, representing the EU externally and providing a focus to the European Council’s work. Its first incumbent-former Belgian Prime Minister Herman Van Rompuy-has focused primarily on the managerial aspect of the post, helping to coordinate the response to the Eurozone crisis, and establishing a modus vivendi with the other institutions, most notably the Commission.

The meetings themselves are confined to two presidents (of the European Council and the Commission) and the 28 heads of state and government, and usually the Union’s High Representative for Foreign Affairs. Outside the meeting room, they are surrounded by a vast media circus which presents the results to the citizens of different countries in radically different ways, with each leader seeking to make the best possible impression on their respective constituencies.

The ‘Presidency Conclusions’ are issued after each meeting, usually in a lengthy document, sometimes with bulky annexes.

European Council, 1979: facing different ways

The Council of the European Union (or Council of Ministers, as it is usually known) is a more complicated body. Which minister attends a given meeting depends on the subject. The Council meets in approximately ten forms, including an Economic and Financial Council (Ecofin), an Agriculture Council, a Foreign Affairs Council (under the chair of the High Representative), and a General Affairs Council comprising the foreign ministers, which is supposed to coordinate the work of the other Councils, but is in practice hard put to control Councils of ministers from powerful departments of state. Each Council is chaired by the representative of the state that is serving in turn for six months as President-in-Office.

Unlike the European Council, large numbers attend the meetings of the Council. Several officials as well as ministers or their representatives from each member state are present; and they are joined by the relevant Commissioners. Officials from the Commission also attend, as well as those from the Council Secretariat, which provides continuity from one presidency to the next and has become quite a powerful institution. Also unlike the European Council, much of the Council’s work is legislative and some is executive.

After protracted pressure the Council now holds its legislative sessions in public, but its proceedings remain more like negotiations in a diplomatic conference than a debate in a normal democratic legislature.

The resemblance to an international negotiation was yet more pronounced before the mid-1980s when, with the launching of the single market programme, qualified majority voting (QMV) began to replace unanimity as the procedure for legislative decisions. Though the treaty stipulated that only texts proposed by the Commission could be enacted into law, the unanimity procedure had given each minister a veto with which to pressure the Commission into amending its proposal; and although the treaty provided for QMV on a range of subjects, the veto implicit in the Luxembourg ‘compromise’ extended its scope in practice to virtually the whole of legislation. The Committee of Permanent Representatives of the member states (called Coreper, after its French acronym) seeks common ground beforehand in the governments’ reactions to the Commission’s proposals; and given the difficulty of securing unanimity, it was thanks to the dedication of many of these officials that the Union was able to function at all. But measures identified by the Commission as being in the general interest and enjoying the support of a large majority were often reduced to a ‘lowest common denominator’, reached after long delay.

Council of Ministers: not a cosy conclave

This contributed to the failure to make much progress towards the single market until the voting procedures were changed following the Single European Act. Up to then, single market measures had been passed at a rate of about one a month, barely enough to keep up with new developments in the economy, let alone complete the whole programme inside a quarter of a century. The system for QMV has undergone several iterations. At present, there is a triple hurdle of a 67 per cent majority of states, a 62 per cent majority of population, and a 74 per cent majority of voting weights (i.e. 260 out of 352 votes, weighted roughly to size). This messy system came out of late night bargaining at the Nice IGC and its complexities prompted the Convention and then the Lisbon Treaty to produce a simpler model. This model will apply from 2014, and requires 55 per cent of states and 65 per cent of population to reach the threshold: this decouples the system from the previous squabbles over voting weights, while protecting both large and small states from being structurally marginalized.

While QMV is designed to ensure that laws wanted by a substantial majority can be passed, the Council still tries to avoid overriding a minority of one government about something it regards as important. This is due partly to the need to treat minorities with care in a diverse polity, and that motive has an edge in the EU, where a disgruntled government could retaliate by bringing business to a halt on other matters still subject to unanimity. Partly it reflects the diplomatic culture which prevails in the Council. But unlike the Luxembourg ‘compromise’, votes are quite often taken, and proceedings take place in ‘the shadow of the vote’, so that ministers prefer to compromise than to run the risk that a vote will produce an outcome which is worse for them. Often the President, judging that a problem has been resolved, suggests that a consensus has been reached and, if there is no dissent, the Council accepts the text without a formal vote.

With the use of QMV for single market legislation, the Luxembourg veto began to fade away, so that QMV became the context for a wider range of decisions; and it was extended by the successive treaties to cover almost all fields of legislation. The remaining handful to which unanimity applies comes under a variety of headings. These typically relate to structural issues, such as membership of the Union, enhanced cooperation, and citizenship, or to policy areas of particular sensitivity. Most notably for the daily operation of the Union, much of foreign policy has retained unanimity. Obviously, the greater the number of member states, the harder it becomes to reach unanimous agreement. So pressure has always existed to reduce the scope for the unanimity procedure and this has been a source of conflict between those with more, or less, federalist orientation. A similar argument arises about the Council’s executive role.

Unlike a legislative body in most democracies, the Council exercises significant executive powers. Although the Commission is, as Monnet envisaged, the Union’s principal executive body, the Treaty allows the Council to ‘impose requirements’ on the way in which the Commission implements the laws, or even to see to their implementation itself. This used to happen under a complex system known as ‘comitology’, where individual committees of member state officials supervised implementation of particular pieces of legislation. While some oversight was possible by the Commission and Parliament, the scope for obstruction and delay led to its partial replacement at Lisbon by a new ‘delegated acts’ process, which removes these committees for certain legislation, and the renaming of comitology as ‘implementing acts’. However, this new system remains deeply opaque, not least because it is at the discretion of the legislators to decide which system to use.

Certainly, the long-standing concerns about the transparency of this part of the legislative process will continue f to approve or not for many years yet.

The European Parliament

Members of the European Parliament (MEPs) are directly elected by citizens throughout the Union in June of every fifth year. There are 751 of them, distributed among the member states in proportions that favour the smaller states, though to a lesser degree than in the weighting of votes in the Council: ranging from 99 from Germany; 72 each from France, Italy, and the UK; and 50 each from Poland and Spain; down to 6 each from Cyprus, Estonia, Luxembourg, and Malta.

The political culture of the European Parliament differs radically from that of the Council. The meetings are open to the public; voting by simple majority is the routine; and the MEPs usually vote by party group rather than by state. Three-quarters of the MEPs elected in June 2009 belonged to the mainstream party groups: 271 to the centre-right Christian Democrat and Conservative EPP (European People’s Party) group; 189 to the centre-left PES (Party of European Socialists) group; and 85 to the ALDE (European Liberals, Democrats, and Reformists) group. The rest were evenly divided between smaller groups to the left, of which the most important were the Greens, and to the right, with a variety of eurosceptics of various ideological complexions.

While agreement has not yet been reached on a uniform electoral procedure, or ‘principles common to all member states’ as the Amsterdam Treaty more tolerantly put it, all the states now operate systems of proportional representation. The balance between the mainstream parties has otherwise been fairly stable, with neither the centre-right nor the centre-left able to command a majority alone. Hence broad coalitions across the centre are needed to ensure a majority for voting on legislation or the budget; and this is all the more necessary for amending or rejecting measures under the increasingly important co-decision procedure, where an absolute majority of 376 votes is required. The well-developed system of committees, each preparing the Parliament’s positions and grilling the Commissioners in a field of the Union’s activities, also tends to encourage consensual behaviour. But there has nonetheless been a sharper left–right division since the elections of 1999, when the centre-right became structurally larger than the centre-left, a pattern reinforced by enlargement.

Although the Parliament has performed well enough in using its now considerable powers over legislation and the budget, the voters’ turnout has declined with each election, from 63.0 per cent in 1979 to 43 per cent in 2009. One reason is a general trend of declining turnouts in elections within member states. Another is a widespread decline in support for the Union. Yet another may be that the Parliament in particular has been exposed to critical and, particularly in Britain, downright hostile media comment, fastening on matters such as the prolonged failure to establish an adequate system for controlling MEPs’ expenses (largely the fault of MEPs themselves, though now in the process of being rectified), and the two costly buildings in Brussels and Strasbourg between which it commutes (entirely the fault of governments). Citizens may, moreover, not yet be aware of how much the Parliament’s powers have grown over time.

The legislative role has developed from mere consultation at first, through the cooperation procedure initiated by the Single Act, to the co-decision introduced by the Maastricht Treaty and extended through to Lisbon to the point where it now applies to the large majority of legislation, under its new name of the Ordinary Legislative Procedure. In addition, Lisbon also gives the Parliament equal rights to agree the entire budget with the Council, allowing it to provide oversight into areas such as agriculture that had previously been shielded.

While the Parliament’s share of power to determine the budget is an essential element of democratic control, its role in supervising how the money is spent has had the greatest impact. As well as its power of scrutiny over the Commission’s administrative and financial activities, the Parliament has the right to grant ‘discharge’: to approve-or not-the Commission’s implementation of the previous year’s budget, on the basis of a report from the Court of Auditors. If not satisfied, the Parliament withholds discharge until the Commission has undertaken to do what is required. Thus in 1998, after the Parliament had withheld discharge for the 1996 accounts and was not satisfied with the Commission’s response, it appointed a high-level expert committee to investigate in more detail. They produced a devastating report on mismanagement and some cases of corruption; and the Commission, anticipating the Parliament’s use of its power of dismissal, resigned in March 1999.

Elected representatives at work: European Parliament sitting

 Having demonstrated its powers over both appointment and dismissal of the Commission, the Parliament is well placed to make clear to voters that it can in future use its influence to secure the appointment of a candidate for Commission President who reflects the results of European elections; and it has been suggested that a commitment by Parliament to do so could enhance voters’ interest in the elections and thus strengthen the Union’s representative democracy.

The Parliament shares power equally with the Council for most legislation and all of the budget; and it has proved much better able than the Council to control the Commission. So it can be said that the Parliament is more than halfway towards fulfilling the functions of enacting legislation and controlling the executive, which a house of the citizens in a federal legislature would perform. The Council for its part would be akin to a house of the states, save that the unanimity procedure still applies to some legislation, only its legislative sessions are held in public, and it has retained executive powers that ill accord with its legislative role.

The European Commission

While the Commission, as it stands today, is not the federal executive that Monnet envisaged, it is, with its right of ‘legislative initiative’ and its functions in executing Union policies and as ‘watchdog of the Treaty’, a great deal more than the secretariat of an international organization.

The Treaty of Rome gave the Commission the principal right of legislative initiative, that is, to propose the texts for laws to the Parliament and the Council. The aim was to ensure that the laws would be based more on a view of the general interest of the Community and its citizens than would result legal personality for with OF from initiatives of the member state governments, and that there would be more coherence in the legislative programme than they or the Councils with their various functional responsibilities could provide. Armed with this power, the Commission was in its early days often called the ‘motor of the Community’. After it had been weakened by de Gaulle’s assault in the 1960s, the balance of power swung towards the Council and, since its establishment in 1974, the European Council. But the Commission still performs the essential role of initiating both particular measures for the Council and Parliament to decide, and general policy packages in the European Council. Outstanding examples of the latter were the ‘Delors package’ of budgetary reform in 1992, and the Agenda 2000 reforms of Community policies to prepare for the Eastern enlargement that were agreed in 1999.

The Commission has also been called the ‘watchdog’ because it has to ensure that the Union’s treaty and laws are applied, notably by the member states. If it has evidence of an infringement, it has to issue a ‘reasoned opinion’ to the state in question. Should the latter fail to comply, the Commission can take it to the Court of Justice. This is what happened in 1999 when the French government refused to accept the Community’s decision that British beef was by then safe to eat and its import should be allowed. The Court found in the UK’s favour in late 2001, although it was not until 2006 that the other member states agreed to lift restrictions, and fines were imposed on France by the Commission in excess of €10 million. The Commission is also responsible for executing Union law and policy, though much of it is delegated to member state governments and other agencies.

In order to ensure that the Commission works in the general interest of the Union, the treaty requires that its independence of any outside interests be ‘beyond doubt’; and the Commissioners, on taking up office, have to make a ‘solemn undertaking’ to that effect. Although the treaty provides for their nomination by ‘common accord’ among the governments, each government has in the past made its own nomination and this has been accepted by the others. But this can no longer be taken for granted, because the accord of the Commission’s newly appointed President is now also required before the Parliament’s approval of the Commission as a whole.

Until 2005 there were two Commissioners from each of the larger and one from each of the smaller states. But the impending enlargement caused concern that a larger Commission would be less effective, so the Nice Treaty limited the number of Commissioners, as from 2005, to one from each member state. Proposals for an even smaller number were stoutly resisted by smaller states, and the initial rejection of the Lisbon Treaty by Irish voters in 2008 resulted in agreement that the current system will remain.

Reducing the number of Commissioners to fewer than one per state is by no means the only way to secure effectiveness. The top tier of governments, such as the British Cabinet, usually has over 20 members, in some cases over 30; and this has worked because a prime minister has the power to control the other members. Treaties since Amsterdam have moved the Commission some way in that direction by giving the President the power not only to share in the decisions to nominate the other Commissioners, but also to exercise ‘political guidance’ over the Commissioners, to allocate and ‘reshuffle’ their responsibilities, to appoint Vice-Presidents, and to sack a Commissioner ‘after obtaining the collective approval of the Commission’. The presence of the Union’s High Representative for Foreign Policy as a Vic-President is enforcement of agencies since Maastricht Treaty.

Lisbon has also helped to provide management of policy coordination, both internally and externally.

The first meeting of the Commission with President José Manuel Barroso, 2004

In treaty terminology, the Commission is the whole body of Commissioners. In common usage, it also refers to the Commission’s staff. But it is usually clear whether reference is being made to the Commissioners or the 25,000 employees; and despite loose talk of a bloated bureaucracy, this is fewer than the numbers employed by many local authorities.

Since QMV now applies to the bulk of legislation, the Commission’s sole right of initiative has given it a strong position in the legislative process. The Council can amend the Commission’s text, but only by unanimity, which here works in the Commission’s favour instead of against it, for while the Commission normally prefers to accommodate governments’ wishes, it is better placed to resist their pressure on points it regards as important.

The Commission has performed its legislative role well. But its performance as an executive has been heavily criticized. Much of the criticism has been unfair, where the execution is in fact delegated to the member states. This is a good principle, which works well in Germany’s federal system where the Länder administer most of the federal policies. But there the federal government has more power to ensure adequate performance from the Länder, whereas member states tend to resist the Commission’s efforts to supervise them. The answer is surely not more direct administration by Brussels, but enough Commission staff to undertake the supervision and stronger powers to ensure proper implementation by the states.

The Commission has a good record in fields such as the administration of competition policy, where it was given the power to do the job itself and has done it well despite a shortage of officials. But there have been serious defects when it has been required to administer expenditure programmes without the staff that can do this properly, resulting in defects either in its own work or in that of consultants hired to do it, with sometimes bad and in a few cases fraudulent consequences. This stimulated not only the 1999 resignation, but also the ongoing reforms to the administration set out by Neil Kinnock in the early 2000s, aimed at improving recruitment, training, promotion, and audit practices.

Some have argued that the Commission is a European government. How far could this be an accurate description? Within the fields of Union competence, its right of legislative initiative resembles that of a government, and even exceeds it in so far as the Commission’s is almost a sole right. But its use of the right is constrained by the Council, particularly where the unanimity procedure applies, though also by the use of QMV rather than a simple majority. The difference is, however, greater in comparison with Britain than with states that practise a consensual style of coalition government. The Commission’s executive role is constrained by the Council and the difficulties of implementation but is otherwise not, in principle, far different from that of the German federal government, apart from the German government’s more effective means of enforcing proper implementation by the Länder. A crucial distinction between the Commission and a government is, indeed, that the Commission does not control any physical means of enforcement. It has moreover only a minor role in general foreign policies their employment policy, and very little in defence. Along with the differences, however, there are significant similarities.

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