Is the European Parliament a proper Parliament?

Structure:

1 Introduction

2 Key Functions of a Proper Parliament
2.1 Representative Function
2.2 Legislative Function
2.3 Appointment and Scrutiny of the Executive
2.4 Budgetary Function

3 The European Parliament
3.1 The Election of the European Parliament
3.2 Legislative Function
3.3 Appointment and Scrutiny of the executive
3.4 Budgetary Function

4 The Lisbon Treaty and its Impact on the Powers of the European Parliament
4.1 Changes in the Electoral System
4.2 Changes in the Legislative Function
4.3 Changes in the Appointment and Scrutiny of the Executive
4.4 Changes in the Budgetary Function

5 The European Parliament = a Proper Parliament
5.1 Representative Function
5.2 Legislative Function
5.3 Appointment and Scrutiny of the Executive
5.4 Budgetary Function

6 Conclusion

Bibliography

1 Introduction

“If there would not be a parliament, every waiter could govern” (Otto von Bismarck). With this statement, the Prussian-German statesman Otto von Bismarck emphasised the importance of a parliament within a democracy. The Parliament is the legislative and the heart of a democracy. Its importance is based on some key functions which it carries out to control the executive and to represent the interests of the citizens.

When the Lisbon Treaty came into force on 1st December 2009, the supporters of the European Parliament (EP) celebrated it`s empowerment. The Treaty gave the EP more power, so that some people are now of the opinion that the EP has the same rights and functions of a proper parliament and put it on the same level as a proper parliament. But is this really true? Indeed, the European Parliament is a powerful institution and within the European Union it should play the role of the legislative. But is it really equal with a proper parliament? Does it really perform the same key functions as a proper parliament? In this essay, I will discuss the statement: “the European parliament is not a proper parliament because it does not carry out the key functions a proper parliament would perform.”

To reach an answer, I will describe and analyse the key functions of a proper parliament in section 2 and in the following section; I will present the key functions which the European Parliament had up until the Lisbon Treaty. After this, I will examine in section 4 how the Lisbon Treaty amended and extended the power and functions of the European Parliament. In section 6, I will bring together all these aspects and compare them in order to answer the question: is the European Parliament a proper Parliament? Finally, I will reach a conclusion.

2 Key Functions of a Proper Parliament

To answer the question: is the European Parliament a “proper parliament”, it is necessary to present and examine the key functions of a parliament in general. Otherwise we will not able to analytically compare the European Parliament with a “proper parliament”. Therefore, the key functions and powers of a parliament will be shown in an abstract form in this section, not applying to a specific country. Due to the fact that the parliamentary system is characteristic of Western Europe, the analysis of the key functions will only refer to parliaments within a parliamentary system.

2.1 Representative Function

In a representative democracy, which is the nature of almost every democratic system in modern Europe, the members of the parliament are delegated by election to represent the citizen’s interests in parliament. “Because in a democracy, by definition, the legislative power …is popularly elected” (Shugart 2006: 344). A key characteristic of a parliament is the power to be elected by the people, and hence one of the key functions is the ability to be empowered to represent their interests within the parliament itself.

2.2 Legislative Function

Democracies in Western Europe are based on the model of separation of powers which means that the political power is shared between the executive, the legislative and the judiciary. Parliament represents the legislative and therefore in theory, has the exclusive right to adopt laws (McLean, McMillan 2003: 305/485). In practice, the executive is influential, if it does not dominate the law-making process. Due to the high level of party discipline, in the majority of cases, government can be sure that its proposal will receive a majority vote in parliament. But on the other hand, parliament can initiate a proposal by itself and often it succeeds in doing so (Gallagher, Laver, Mair 2006: 61/62).

Nevertheless, it is parliament which makes the final decision by voting for or against the draft bill. Therefore, the right to initiate and adopt law should be noted as a key function of a parliament.

2.3 Appointment and Scrutiny of the Executive

In a parliamentary system, the parliament is responsible for the government. The parliament is empowered to appoint the government. It can also force the government to resign before the end of the term by passing a motion of no confidence. Hence, the parliament has the power “to turn the country’s government out of office” (Gallagher, Laver, Mair 2006: 60/61). If the parliament does so, the government can either withdraw, in which case the parliament elects a new government; or it dissolves the parliament and holds a new general election.

Another way to control the executive is “Question Time”. Parliaments are entitled to submit questions to the government or to a certain minister; the questions must be replied to within a fixed period. “Parliamentary questions offer one of the principal means by which members of a legislature may call ministers to account and scrutinize their operations” (McLean, McMillian 2003: 395).

Furthermore, parliaments monitor the actions of the government in creating committees which should control the performance of the different ministries. This is “the most effective method through which parliaments keep an eye on the behaviour of governments…” (Gallagher, Laver, Mair 2006: 67).

To sum up, parliaments have several functions and rights which can be used to control and oversee the government and its actions. In particular, the right to appoint and to dismiss the executive are powerful key functions of a parliament.

2.4 Budgetary Function

The determination of the annual expenditure, which is necessary to meet given political aims, is an important part of political decisions. Normally, the executive evaluates a draft budget which has to be adopted by the parliament. “…being passed by parliament it should give legal effect to appropriate tax-raising powers” (McLean, McMillian 2003: 53). At the end of a financial year, the account of the implemented budget will be verified by the parliament. Therefore, it is the parliament`s right to discharge the executive. The “power of the purse” is another key function, which a parliament can use to control the executive.

3 The European Parliament

After presenting the key functions of a proper parliament, in the following section I will show which functions the European Parliament has performed within the European Union prior to the Lisbon Treaty. Hence, this section is written in the past tense.

3.1 The Election of the European Parliament

The European Parliament (EP) was the only institution of the European Union which was directly elected by EU citizens since 1979. Furthermore, it was the only directly elected multinational parliament in the world. The Members of the European Parliament (MEPs) were directly elected by universal suffrage for a term of 5 years. It is important to mention these characteristics of the European Parliament, “since the direct election of its members by universal suffrage is the most characteristic and essential feature of a parliament” (Palmer 1981: 3) and it emphasised the democratic nature of the Parliament comparing to the other institutions of the European Union. The election of the European Parliament was the only opportunity for citizens to directly influence EU politics. The electors legitimated the MEPs to represent their interests within parliament. Therefore, “…the European Parliament is the Union`s most open, public, democratic institution (Bomberg, Peterson 1999: 43).

Article 138 of the EEC Treaty in 1957 prescribed that “the Assembly shall draw up proposals for elections…with a uniform procedure in all Member States”. However the Amsterdam Treaty changed Article 138 in 1997 and provided that instead of a uniform electoral system, the election should be held “in accordance with principles common to all Member States” (Watts 2008: 137). These “common principles” included that “there should be an obligation to have a system of proportional representation in all countries” (Corbett et al. 2005: 16/17). In Contrast to the majority system, the obligation of proportional representation should have prevented the effect of “the first-past-the post”-system. In 1979, for example, this system made it possible for the British Conservatives to occupy 60 of the 78 seats available in Britain, even though they only won 50% of the vote. With a proportional system, they would have obtained only 39 seats. Furthermore, the Member States could establish constituencies at a regional level, but only a few countries had already done this. Moreover, the Member States were authorized to implement a minimum threshold, such as the 5 % provisions in France and Germany, on the condition that it does not exceed 5% of the popular vote (Corbett et al. 2005: 18-20).

The seats were distributed proportionately according to the population of each Member State. The minimum number of Seats was six and the maximum was 99. The European Representatives were not bound by any instructions or mandate. They were only responsible for their electors. After a long period of political differences within the member states, the 2002 Council Decision prohibited the dual mandate, which meant that membership of the European Parliament was incompatible with membership of a national parliament. In addition to this, the national parliament was not allowed to be an MEP, an EU ombudsman, a member of a national government, a member of the European Commission or of the Board of the European Central Bank (Corbett et al. 2005: 21).

3.2 Legislative Function

The major power of a democratic parliament is the legislative function. Together with the Council of Ministers^[1], the European Parliament was intended to represent the two chambers of a bicameral parliament. But until the 1980s, the Parliament was only given a consultative role, whereas the Council was solely empowered to adopt European laws (consultation procedure). Mainly the adoption of the Single European Act (SEA) in 1986 extended the legislative rights of the Parliament with the co-operation procedure. The co-decision procedure, established by the Treaty of Maastricht (1992), extended and adapted by the Treaty of Amsterdam (1999) and by the Treaty of Nice, is the most significant constitutional development of the parliament’s legislative rights. It changed the role of the parliament, so that “under co-decision procedure, Parliament and Council adopt legislative initiatives on a basis of joint agreement” (Watts 2008: 106). Therefore, a distinction was made between co-decision, co-operation, consultation and assent procedure.

All these different legislative procedures required that the Commission was the sole initiator of legislative proposal. The right to initiate legislative proposal is one of the key functions of a parliament. But “in the European Union the Commission has near monopoly of legislative initiative. The Parliament has no formal right under the treaty to initiate legislation, except for the purpose of adopting a uniform electoral procedure…” (Corbett et al. 2005: 230). Article 192 of the Maastricht Treaty empowered the Parliament to request the Commission to submit any proposals and in almost all cases, the Commission took up the parliamentary proposals. Hence, the Parliament had an “indirect right” to initiate legislature. Nevertheless, the fact that “any notion of a legislative program is left in the hands of the unelected Commission…” (Archer 2000: 52) showed the weakness of the parliament.

Under consultation procedure, the Parliament was involved in the legislative process, in a way that the Council was not, until the Parliament gave an option on a proposal from the Commission. Therefore, Parliament could use its “power to delay” to influence EU law (Kardesheva 2009: 404). But this option was not binding on the Council, meaning the Council had the right to adopt the Act by a qualified majority or by unanimity. “…the Council has the power to overturn EP amendments…and to ignore EPs rejection of legislative proposals” (Nugent 2003: 203). Although the use of this procedure has been reduced with the implementation of co-operation and co-decision, it still covered important areas such as CAP and taxation, in which the Parliament had no granted decision- making power (Watts 2008: 104/105).

Under co-operation, the Commission presented a new proposal to the Council and the Parliament simultaneously. During the first reading, the Parliament adopted its position and submitted it to the Council. If the Council accepted the Parliament`s position, the legislative text was adopted. If the Council disagreed with the Parliament`s position, the Council adopted a “common position” and referred it to Parliament for a second reading at which Parliament may have acted in three different ways within a three-month deadline (extendable to four): approve, reject or propose amendments.

If Parliament approved the text (or just took no decision) with a simple majority, the proposal was adopted. In case of a rejection of the common position, the Council could overrule the Parliament with the agreement of the Commission by an unanimous vote and the Act was adopted (Watts 2008:105/106).

If Parliament amended the position of the Council by an absolute majority, Commission decided whether it would support the amended version of the proposal or not. After which, it returned to the Council and the Council could react in two different ways: either, within 3 months (extendable to four), the Council accepted amendments made by Parliament by a qualified majority and, in this case, the legislative text was adopted; or the Council rejected Parliaments amendments and modified it by unanimity and the Act was adopted. (Every amendment not supported by the Commission needed unanimity to be adopted by the Council). Hence, the Parliament was entitled to amend the proposal and the need for unanimity made the rejection of the Parliamentary opinion more difficult for the Council. But in the end, the Council was the final and sole decision maker in important areas, such as: transport, which emphasised the limited power of the European Parliament again (Corbett et al.2005: 206/ Watts 2008: 108).

The co-decision procedure was identical to the co-operation procedure up until the second reading of the Parliament. In contrast to co-operation, the legislature failed if Parliament rejected it by an absolute majority and the Council had no rights to overrule Parliament. If Parliament amended the proposal, Council had two options to react: either, within 3 months (extendable to four), the Council accepted each and every amendment made by the Parliament, and in this case, the legislative text was adopted; Or the Council rejected the amendments with a qualified majority and the matter was automatically transmitted to the conciliation committee. The conciliation committee consisted of members of the Council and an equal number of members of the European Parliament. “This committee, also attended by the Commission, has six to eight weeks during which it is required to negotiate a compromise text based on the common position of the Council and the amendments voted for by the Parliament at the second reading” (Corbett et al. 2005: 207). If the Committee have reached a compromise satisfactory for both institutions, the Council and the Parliament could approve the “joint text” in his entirety within a period of six to eight weeks. For the approval of it, the qualified majority vote by the Council and the majority votes cast by the Parliament were necessary.

However, if the Committee could not reach a compromise, or if the Council or Parliament did not approve the joint text within a period of six to eight weeks, the act failed and could not become law (Peterson, Shackleton 2002: 105).

Under co-decision, the Parliament acted as a “co-legislator” empowered in the same way as the Council. The right to veto a proposal and the Commissions and Councils opinion gave the Parliament a bargaining position. “The prospect of producing a negative outcome serves to focus the collective minds of Council and Parliament to reach positive compromises” (Judge, Earnshaw 2003: 207). The co-decision procedure covered more than half of the legal bases of Community action, but there were still some important areas, such as agriculture and fishing, which were not part of this procedure. The fact that the Parliament was not entitled to act as an equal decision maker, together with the Council, within these key areas showed the lack of influence of the European Parliament (Harris, Lord: 2006: 79).

Finally, the assent procedure was needed for instance on association agreements with non-EU states and on any proposed enlargement of the European Community. Hence, it was not really a “normal” legislative procedure. The Parliament had the power to give or to withhold its approval, but it was not entitled to amend the proposal. The fact that the Parliament was not empowered to table amendments highlighted again its low influence. But “…by having the power to say “no” to proposals the EP also has the power to indicate to what it would say “yes” “ (Nugent 2003: 353). Hence, it could use this power to influence the content of the proposal.

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^[1] In this essay the single term „Council“ refers to the Council of Ministers