Though co-decision increased the European Parliament’s legislative role considerably it also immediately placed a limit on it by effectively introducing a third reading stage to the legislative process, by setting up Conciliation Committees. The reason for this was to limit the risk of blockages by stipulating that, in the event the Committee failed to reach agreement, the Council would still be able to confirm its joint position (with possible amendments by the European Parliament), unless the Parliament were to reject it with unanimity. Furthermore, as introduced by the SEA the TEU extended the areas where parliamentary assent was required, and provided that under CFSP, the European Parliament’s views had to be taken into consideration, Article 21. Thence, the TEU undoubtedly gave the European Parliament greater legislative power; yet, every measure adopted under co-decision still required the signature of both the president of the European Parliament and the President of the Council.
The ToA reformed the co-decision procedure in two ways. It extended its application and removed the third reading stage. Furthermore, the areas where parliamentary assent was required were again extended. The change in co-decision led to considerable time-savings as legislation could now be adopted at the first reading stage already if both Parliament and the Council agreed. This finally put the European Parliament on an equal footing with the Council in every stage of the procedure. The Nice Treaty further increased the application of co-decision and the areas where the requirement for parliamentary assent was required.
Over the last ten years, changes made to the European Parliament have increased parliamentary powers and influence in the legislative procedure at least in theory. The effect of the changes in practice is however difficult to assess. Measuring this is a complex task and though there is an abundance of empirical data available one may still argue that ‘the legislative influence of the European Parliament remains something of an enigma’. Although it can be said that the reformed co-decision procedure was very beneficial to the European Parliament’s legislative influence, it still lacks a right of legislative initiative, though under Article 192 (ex Article 138 B). Ultimately however, the power and influence of the European Parliament have been increased in the legislative system and this has inevitably led to observations as to the effect these changes have made to the so-called ‘democratic deficit’.
The ‘democratic deficit’ was a popular academic theme during the 1990s, expounded particularly by Joseph Weiler in his article “European Democracy and its Critique”. Essentially, Weiler identifies seven elements of the legislative and institutional structure, which evince anti-democratic criteria. However, one could say that the democratic deficit in the system arising from the position and powers of the European Parliament cannot be easily defined, for the interrelations of the various EU bodies creates shifting balances of power which preclude simplistic and generalist assertions about the strength of European democracy. However, the arguments suggesting a deficit will be described but with close regard to the European Parliament.
The ‘democratic deficit’ can be highlighted, one could say in terms of the executive dominance of the EC legislative process. The transfer of competences from member states to the Council and Commission had over time enhanced the executive power of national governments at the expense of their own national parliaments, who no longer had the same level of scrutiny over laws being made. However, more importantly, whilst these EU bodies had their legal powers augmented, neither were directly accountable via suffrage of EU citizens- only the European Parliament can make this claim of legitimate direct mandate. For many years, the legislative system marginalized the European Parliament by way of legislative means such as the ‘Consultation’ procedure. These means provided that legal power concentrated in the hands of a largely unaccountable college of commissioners and councillors. As Westlake suggests, “the EP was born hungry and frustrated and has developed into an habitual struggler”. The Council’s power at the expense of Parliament impacts further on the ‘democratic deficit’ due to the strong influence of Committee of Permanent Representatives (COREPER) over legislative formulation. COREPER assists the council by digesting and drafting legislative proposals; of which the un-contentious will be adopted without question in council. In making its decisions it draws heavily on technocrats, civil servants and private (and public) lobbyists who are un-mandated and can heavily influence EC law perhaps by their own sectional interests or prejudices in mind.
The exercise of delegated legislation by the Commission also had anti-democratic implications it was argued. For the most part, the Commission on behalf of the Council, without the Parliament, could exercise delegated legislation. Critically therefore member states’ interests could not act as a check to the Commission in exercising delegated legislation of for example, a regulatory nature. A system of Comitology was developed in 1987 to try and give the interests of member states representation via committee based scrutiny of the exercise of secondary legislation. However, the role of the Parliament, the only directly elected body was sidelined from this process of Comitology meaning a democratic deficit was evinced in the realm of delegated legislation.
The issues of openness and participation in the legislative process point may also have pointed towards a ‘democratic deficit’. One could argue that the closed nature of decision-making in the Council shows a lack of transparency which is inherently detrimental to a functioning democracy. As the European Parliament (an open forum for debate) had been traditionally sidelined in the legislative process, the negative impact for democracy caused by this lack of transparency in the senior bodies was quite serious.
The idea of a ‘democratic deficit’ is therefore multifaceted. Essentially the changes to the European Parliament over the last decade have increased its power and influence in the realm of the legislative system in the European Community. The introduction of the co-decision procedure ‘marked a major turning point in the institutional history of the European Union’ especially considering that the ‘co-decision can now be reasonably described as the normal, template legislative procedure in the EU’. Initially it would appear that the journey from a position of weak power, in the Consultation Procedure to a position of considerable strength in the Co-decision Procedure has gone some way to rectifying the democratic deficit, weakening the supremacy of executive power and affording a greater role to the directly elected, supranational Parliament. However, a deeper examination suggests the answer cannot be quite so one dimensional.
From a Euro-Sceptic, Nationalist perspective, the ‘democratic deficit’ arises due to the subversion of national democracy, manifested in the increased involvement of supranational institutions in the legislative process, principally the European Parliament. It is the Council, with its intergovernmental structure that is the most democratic institution within the community. In light of the increased role of the supranational Parliament, by virtue of its power of the veto, but more importantly its power of conditional agenda setting, most notably in its tabling of amendments, the democracy secured via the central role of the Council in the Consultation Procedure has since been diluted and the ‘democratic deficit’ has arguably been exacerbated. Although a degree of democracy remains by virtue of the fact that the Parliament’s powers are not absolute, the increased power and influence of the European Parliament has resulted in a greater supranational element in the legislative system, which for the pro-intergovernmental Nationalist further exacerbates the ‘democratic deficit’.
A quite different conclusion is reached if one analyses the situation from a Euro-federal perspective. Proponents of Euro-Federalism are keen to assert the existence of a European Community which is in need of a better, improved institutional structure. Therefore the existence and utilisation of supranational institutions within the legislative system should be encouraged. The enhanced participation of the European Parliament in the legislative process and the fact that the Council is now ‘explicitly required by the Treaty to negotiate with the European Parliament’ has therefore gone some way to rectifying the ‘democratic deficit’, diluting the executive dominance of in the legislative system. By virtue of the fact that the European Parliament now assumes a more central role in the legislative system, the peoples of Europe now appear to be more democratically represented. The increased role of the Assent procedure, the power of veto and amendment and the presence of the European Parliament in the conciliation committees are all appealing to Euro-Federalists. However, for the Euro-federalists, who aspires to create a centralised supranational federation, the changes over the last ten years have not wholly rectified the democratic deficit: perhaps one might assert, as Mancini does, that the ‘Union is doomed never to be truly democratic’ while non-supranational elements exist in the system, such as COREPER, the trilogue system or Comitology.
If however one is influenced by the methodology of Weiler, that serves to ‘free us when thinking about the EU democracy from the confines of what is an inappropriate, rigid paradigm of the traditional nation State’ then one might assert that democratic legitimacy is ‘founded upon the Member States as well as its peoples’. If we continue to use ‘a very specific normative yardstick with which to measure the democratic quality of European policy-making processes’ then, due to the unique structure of the European Union and therefore its legislative procedure, we are unlikely to ever see the ‘democratic deficit’ completely rectified or exacerbated. If we adopt Weiler’s philosophy we are able to see the democracy deficit of the European Union considerably rectified: the changes in the power and influence of the Parliament have placed the intergovernmental and supranational institutions of the Community on an equal footing that arguably brings into being ‘the twofold legitimacy on which the Community is founded, its State and its peoples’. In this respect the equal position now afforded to the Parliament has bought this twofold legitimacy to the legislative system, and has arguably bought greater democracy to the unique community that is the European Union.
EP ‘Activity Report for 5th Parliamentary Term’ PE 287.644
A. Kreppel, ‘Moving beyond procedure – An Empirical Analysis of European Parliament Legislative Influence’ in Comparative Political Studies Vol. 35 No 7, Sept. 2002 at 786
Weiler, Haltern and Mayer from J.Hayward The Crisis of Representation in Europe
M.Westlake, A Modern Guide to the European Parliament (Pinter, 1994), 28.
Michael Shackleton and Tapio Raunio, ‘Codecision since Amsterdam: a laboratory for institutional innovation and change’
Michael Shackleton and Tapio Raunio, ‘Codecision since Amsterdam: a laboratory for institutional innovation and change’
Mancini, ‘Europe: The Case for Statehood’
Craig & DeBurca EU Law text, cases and materials p.171
Adrienne Heritier, ‘Elements of democratic ligitimation in Europe: an alternative perspective’