Have the changes in the powers and influence of the European Parliament over the last ten years exacerbated or rectified the 'democratic deficit' within the EC Legislative System?

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Have the changes in the powers and influence of the European Parliament over the last ten years exacerbated or rectified the ‘democratic deficit’ within the EC Legislative System?

The three significant legislative institutions of the European Community can be cited as the Council, Commission and European Parliament. Legislative passage can be achieved by using a variety of procedures.  Each of these procedures affords a differing role to the European Parliament and therefore the balance of EP power is never static. Although traditionally, the Parliament had a nominal role in the legislative system, by way of the Consultation procedure, over the last ten years treaties have extended the role of the European Parliament, by the introduction and amending of the Co-decision procedure. Changes over the last ten years now mean the most important legislation is now largely passed via the latter procedure, which has considerable consequences for democracy within the EC legislative system.

Although we may comfortably assert that the Co-decision procedure is the primary legislative mode, there are still areas of law making where the European Parliament is not involved at all. Although used cautiously, the Treaty does grant the Commission a power to legislate in some areas, free from intervention from the other institutions. Furthermore, there are a number of areas in which the Council and the Commission are able to operate without any intervention by the European Parliament. The Council will act on a proposal from the Commission and subsequently take the decision in accordance with the particular voting requirement as stipulated in the relevant Treaty Article. This legislative procedure is employed in relation to aspects of free movement of workers, economic policy and the common commercial policy. The ‘Assent’ Procedure is less frequently used but under this procedure, the Council acts after obtaining the assent of the Parliament. The act will only be adopted if it has been duly approved by both the Council and the Parliament. Although the Parliament has no formal mechanism for proposing amendments, the procedure grants Parliament an infinite power of delay and outright rejection. The Cooperation Procedure that was introduced by the Single European Act in 1986 has since been largely replaced by the Co-decision procedure. Therefore, the two principal procedures used to pass legislation in the EC are the Consultation and Co-decision procedure, the latter one invoking notable changes to the power and influence of the Parliament during the last decade.

The initial role of the Parliament in the legislative process was a small one. The Treaty of Rome afforded it only a consultative function. The Council was obliged to wait for Parliament’s opinion of the proposal and although not required to accept its comments, should the Council proceed without it, the measure may be annulled. Amendments instigated by the Council after the initial consultation may require further consultation by the Parliament. The role of the Parliament is thus restricted as its opinion is not binding: the Council is not compelled to adopt any amendments suggested by the Parliament.

The Treaty of Maastricht (TEU), 1992, introduced the co-decision procedure under the new Article 189 B, its areas of application being extended by the Treaty of Amsterdam (ToA), in 1999, and confined the use of the co-operation procedure to aspects relating to EMU. Under the Co-decision procedure the Commission’s proposal is sent to the Council and the Parliament and they each read and discuss it twice in succession. Parliament is afforded the opportunity to propose amendments to the Commission’s legislative text.  The Council can adopt Parliament's amendments that have been accepted by the Commission by a qualified majority, or modify Parliament's amendments only by a unanimous vote. If a bill has been changed by the Parliament during the second reading and the Council does not wish to consent to the changes, a conciliation committee composed of 15 members of the Council and 15 members of the Parliament is called. In the vast majority of cases the two parties reach an agreement, in the form of a joint text. Parliament is then requested to confirm this agreement at the third reading. If no agreement is reached, the proposal is deemed not to have been adopted. Co-decision provides the European Parliament with a veto and an amendment power. Though the veto power seems strong in theory, it is less so in practice. Parliament will in most instances prefer to have undesirable legislation than to have none at all. In fact, between May 1999 and May 2004, the European Parliament used its veto power in 2 out of 403 instances only, and in both cases it related to measures which would result in the European Parliament losing powers to the Commission. More significant is the power of amendment. The Council is not obliged to adopt the Parliament’s amendments, but chooses to do so frequently as it is easier for the Council to adopt these proposals than to issue its own.

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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, ...

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