The democratic legitimacy of the Unions legislative process may have been enhanced by the growing influence of the European Parliament, but it remains deeply flawed by the role of the Commission and the functioning of the Council.

There has been much debate in recent years over how much powers do the Council, The Commission and the European Parliament have when it comes to the Union legislative procedures. First, we need to establish what kind of acts do the institutions adopt and how do they do it.

The Union’s pre-Treaty of Lisbon legal instruments and decision-making procedures varied according to which one of the three ‘’pillars’’ was at issue. The Treaty of Lisbon (adopted in 2009) introduced a new distinction between legislative and non-legislative acts. Regulations, directives or decisions are all types of legislative acts which are adopted through either the ‘’ordinary’’ or the ‘’special’’ legislative procedure. In contrast, non-legislative acts comprise all other legal instrument adopted under the Treaties through a non-legislative procedure. We are concerned in this essay with legislative acts only, because they are the legally binding ones.

The Initiation of legislative procedures begins with the Commission’s proposals for legislative acts. This initiation is designed to ensure that both the Council and the European Parliament exercise their legislative powers only in relation to the Commission’s proposals. However, both the Council and the European Parliament are entitled to request that the Commission should consider submitting proposals on any given issue.

The ordinary legislative procedure (previously co-decision procedure) is described in detail in Article 294 TFEU. As Dashwood put it, ‘’it entails successive readings of a proposal for legislation, offering a series of opportunities for interaction between the Commission, the Council, and the European Parliament, all designed to channel the latter two institutions towards approval of a joint text. ‘’ If the European Parliament rejects a proposal, the Council cannot adopt it. To avoid this deadlock, a conciliation committee (composed of members of the three decision-making institutions) might be called after the second reading of the legislation proposals. If conciliation is successful, the proposal will move to its third reading.  

The ordinary legislative procedure reflects the dual basis of democratic legitimacy: the European Parliament directly represents the citizens, The European Council and the Council represent the individual Member States. The most important feature of the ordinary legislative procedure is that both the European Parliament and the Council have equal legislative power. If one of them is not satisfied with a certain measure, it cannot be adopted. European Parliament has a right to be consulted. Failure to follow this procedural requirement may lead to the measure being declared invalid at it happened in the cases of Roquette v Council and Maizena v Council. The European Court of Justice held that the Parliament has to give its opinion in relation to legislation adoptions. However, this leads us to question of what would happen if the Parliament was deliberately blocking legislation and the Council wished to adopt it. Such an issue has not yet occurred.

When it comes to the special legislative procedure (previously co-operation), the situation is slightly different. When the Council receives a proposal from the Commission, it adopts a ‘’common position’’, which is sent to the EP. The Parliament has three months to act upon it. This time, if the Parliament rejects the common position, the Council can adopt the proposal only by unanimity.  This is another evidence which proposes that the Council and the Commission ‘’working together’’ may be more powerful than the European Parliament alone.  If Parliament wishes to amend the proposal, it shall send its amendments back to the Commission for considerations. The commission has no obligation to adopt them. The proposal is then sent back to the Council along with any parliamentary amendments it had not accepted and the reasons for this refusal.  The Council can accept the amended proposal by a qualified majority or it can amend it by adopting its own amendments or those proposed by the Parliament. This has to be done unanimously in the Council. The main difference of the special legislative procedure is that it contains no procedure for compulsory conciliation (as opposed to the ordinary legislative procedure) and the Council could not be prevented from adopting a text that ignored the European Parliament’s wishes. However, the European Parliament still has to be consulted. The Isoglucose case explained the reason for that. The Court argued that it is essential for the Parliament to play an actual part in the legislative process because it reflects the Community’s democratic principle that people should take part in the exercise of power through the intermediary of a representative assembly.

It could be argued that the Union’s democratic legitimacy has been enhanced by the Parliament. In 1979, it was perhaps reasonable to suggest that the Parliament was little more than a ‘’a talking shop’’, since under the Treaty of Rome, its powers were primarily ‘’advisory’’ and ‘’supervisory’’. Today, the powers of the European Parliament are far greater than they used to be. As stated above, if Parliament decides to reject the proposal, the Council cannot adopt it. However,  democratic legitimacy is still mostly dependent on the Council and the Commission. For example, the Council, having considered the Parliament’s opinion in relation to a legislative act, has no legal obligation

If we are to support the idea that the European Parliament is not powerless, it might be helpful to analyse the fact that it may not be responsible for initiating new legislative acts, however, according to Article 225 TFEU, it can request the Commission to submit ‘’appropriate proposal on which it considers that a Union act is required for the purpose of implementing the Treaties’’, acting by a majority of its component Members. Also, the Commission may not reject the proposal without informing the European Parliament of their reasons. Therefore, although it does not have the direct power to propose new laws, the Parliament still have other indirect options to do so during a special legislative procedure.

Also, for the first time the treaties expressly state that the Commission as a body is responsible to the European Parliament. The Commission candidates, including the President (elected by the European Parliament) and High Representative (appointed by the European Council acting by a qualified majority) are subject as a body to vote of consent by the European Parliament (Article 17 TEU). The European Union Committee in the House of Lords believed that the election of the Commission President by the European Parliament would give the President ‘’great democratic legitimacy insofar as he is proposed by 27 democratically elected governments and is then elected by the directly elected representatives of the European Parliament’’.  As the Federal Union explained, these changes are giving the President of the Commission the same kind of legitimacy as that enjoyed by the prime minister of a Member State.

For, although the European Parliament’s powers have grown considerably over the past twenty years, it remains relatively weak in relation to the Council and the Commission, especially when the Council and the Commission act together.  Vernon Bognador refers to the Council as ‘’the most powerful institution of the European Union’s political structure’’. He believes that increasing the importance of the EP elections is crucial for democratic legitimacy. In his opinion, voters may well be willing to alter their voting behaviour and take part in a truly European debate if the EP had more influence than it does have now. Since, at present, voters cannot see how their votes change anything at the European level, their motivation to participate in EP elections is bound to be limited. The Federal Trust Report proposes that the ordinary legislative procedure should be extended to all areas. Bognador believes that the best way of increasing the importance and impact of EP elections would be to tie the nominations of the Commission of the EU directly to the result of elections to the EP. In theory, elections to the European Parliament should be an inspirational exercise in multinational democracy. In practice, they do not fulfil the functions which are performed by elections in the member states.

Just as some might argue that the European Union is already legitimate because the Council and the European Parliament are both directly elected, so also they might suggest that the Union is accountable since ministers of the member states are accountable to their national parliaments for the decisions they take in the Council. The democratic legitimacy has been enhanced by the European Parliament throughout the years of its growing legislative influence. However, the Council and the Commission are still the two main institutional bodies responsible for the final architecture of all the legislative acts. That is why the popular phrase states that ‘’The Commission disposes – the Council of Minister disposes’’. Is it possible for the Parliament to become more powerful in the future? Probably it is. Is it going to be like that, though? This answer is still unclear.

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