European Parliament
The number of seats allocated to each member state is weighted according to the size of the member states. Initially when the EP was first established it had a small role, after the implementation of subsequent treaties its role and powers (which will be discussed later) have developed significantly. It has been said that EP’s role is purely consultative in the legislative process; however its position as the core democratic body of the EU is being increasingly acknowledged and as a result have now been given more of a pro-active role.
Inter-institutional legislative Process
There is no single law making body of the EU, in the UK parliament has the main legislative role, in the EU; the law-making task is divided and shared between the three institutions, this is known as the inter-institutional legislative process. There are six legislative procedures that need to be identified:
- Commission acting alone
- Council and commission acting alone
- Consultation procedure
- Co-operation procedure (Article 252 EC treaty)
- Co-decision Procedure (Article 251 EC Treaty)
- Assent procedure
The role and power of each institution will vary in respect of the procedure used, however, the essential distinguishing characteristic is the power afforded to the EP, which under the treaty of Rome was afforded a minor role and has now hugely seen its role develop. Which legislative procedure applies is dependent upon what is specified under any particular treaty.
Commission acting alone
Though this is infrequently done. Article 39(3)(d) allows the commission to act on its own initiative. The EC treaty under article 86(3) concerning relations between member states and public undertakings allows commission to make legislation without interference from the other institutions on a limited number of subject matters. So one may argue how does this help the inter-institutional balance? Though the council or EP may not have any influence on the commission under this procedure, the commission still faces criticism from member states who argue that a different procedure should be used on such subject maters, so that the council representing the member states can play a legislative role.
Council and Commission acting alone
In some areas only the council and commission will be permitted to act without any intervention from the EP. In such a position, the commission will propose and the council will act in accordance with the voting requirement as laid down in the treaty concerned. Such a procedure may be used in relation to economic policy and free movement of workers. The cancel has the option to consult parliament if it wishes.
Consultation procedure
In the initial treaty (Rome), Commission would propose and the council would accept or dispose depending on the outcome of the vote, parliament had a purely consultative role and this role was only put into practise where it was laid down in the treaty. The council is now to wait for parliament’s opinion in the consultative procedure, if it fails to do so then the measure could be terminated and parliament will have to be re-consulted where there are important changes to a measure. However, having said that the council is not bound by the opinion of the EP. Today there exist a few areas where the situation is like so.
Co-operation procedure.
The SEA bought many new developments the most relevant for the sake of this argument being the increased powers of the EP. It was at this stage that the EP would have a significant say in the legislative process of the EU and playing its part in the inter-institutional balance. Prior to this there had been arguments that the EP’s insignificant role was justified by the fact that it was only indirectly elected, therefore its claim to participate in the legislative process was weakened’. De Burca also puts forward that the argument was ‘palpably flawed’, as the EP had the strongest democratic claim to take part in the law making process. Nevertheless, the EP had not been placed on an equal footing with the other two institutions, but it had definitely been granted more power then it had before, this power is now laid down in Article 252 EC. The article calls amongst other things that whenever a treaty provides that there must be the use of article 252 then;
The council, along with the commission ‘adopts a common position,’ after obtaining opinion from the EP. The council and commission are to notify EP fully of the reasons as to why the position was adopted Article 252(c) EC, stipulates that if EP rejects the common position by an absolute majority, then the council can only adopt the act by a unanimity. On the other hand, EP may suggest amendments by an absolute majority however this is to occur within a three month time limit. Here we can see the significance in the voting power granted to the EP and how the use of the absolute majority vote will put them in a stronger position in contrast to the commission’s unanimity. Part (d) of the article lays it upon the commission, that if there are amendments, then they are to reconsider the proposal in light of these amendments, If the commission fails to accept the amendments it must express an opinion, it is then up to the council to adopt the amendments by unanimity In the next stage the council may adopt the re-examined proposal, unanimity is required in the council to amend the proposal as re-examined by the commissioners. Part (e) states that after the EP have rejected common position by an absolute majority, then the council must react within 3 months or the proposal would lapse.
In effect this procedure puts the legislation through the ping pong effect, and the EP is given a similar role to play as to the House of Lords in the scrutiny of the legislation, thus also operating as checks and balancing tool to ensure there is no outright rule and upholding rule of law of the EU constitution. The EP is given two readings, which gives it a further efficient role in the scrutiny of the legislature. Westlake notes that’ emphasis on the first reading had given parliament’s power of delay fresh significance’. The EP is also given choice as under part (c) of the article, this improves the say it has in the creation of new laws, and amendment allows the EP to put forward its own ideas and plans that may be the will of the people to whom they represent, therefore bringing the development of EU law in line with democracy. However, having highlighted the positives of the extended power of the EP under article 252, its use in a range of areas has decreased, and now mainly applies to areas concerned with economic and monetary union. Nevertheless the move made by the SEA to extend EP’s powers is to be commended as it has influenced the granting of power in other areas.
Co-decision procedure
De Burca observes Article 251 has become the method for the making of most community legislation. Once again the EP is granted two readings, the first under part (2) of the article before council adopts common position, the second reading will only be necessary if council had not approved of the amendments made by the EP in the first reading, if no further amendment can be decided upon, then the council and EP must approve measure from the Conciliation committee that will come into operation as a results of the disagreement. The preceding
Stages follow a similar pattern to the article 252 procedure, so will not be necessary to dwell into. Furthermore, the treaty of Amsterdam (ToA) has extended the procedure by strengthening the power of the EP. The EP can veto legislation of which it disapproves; also if the EP rejects the common position held by the council the proposed measure will be deemed not to have been adopted, furthermore, the council will not be able to proceed if there has been no agreement with the conciliation committee on a joint text. It has been said that the co-decision procedure has been modified in practice through the institutionalization of trialogues
Article 251 has been a successful procedure in obliging to the various interests of those involved in the law making process. This places the EP on a nearer equal footing with the council, and because this procedure is widely used it gives the EP a bigger say in more matters of concern
Assent procedure
Council will act after obtaining the assent of the EP, so act can only be approved if it has been approved by both Council and parliament. This grants parliament an’ infinite power of delay and an absolute power of rejection’. This area was developed by the SEA
Conclusion
Consequently, the changes bought by the SEA and ToA are of great significance. The Single European Act brought for the European Parliament mainly the cooperation and assent procedures. These were certainly milestones. They implied for the first time a serious recognition of the European Parliament as part of the Community legislature, albeit limited to two readings. The procedures in which EP has a minimal or a less significant role are limited in their use, however, in contrast the procedure in which parliament has the most pro-active role- co-decision, is widely used, so there is a greater institutional balance. This balance is evolutionary and it is constantly acknowledged that democracy has to be infiltrated into in the legislation process and as a result the power of the EP has changed and developed with the implementation of the SEA, Maastricht, Amsterdam and Nice treaties. The Nice treaty, extended qualified majority voting in the council and the power of co-decision of the EP. Contrary to argument, the EP’s claim to co-equal status has been strengthened by the fact that it is the strongest democratic institution of the three, as it is founded as representing the interest of the people of Europe.
Therefore the draft constitution of the EU must maintain the institutional balance, and the hard work done by the treaties. The importance of such a balance has been discussed above, such a constitution must not separate the roles and powers of the institutions, and one cannot work without the other. Nor should the powers of the law making procedure be vested in one body. The inter-institutional balance provides for a greater depth of ideas, tougher scrutiny of legislation, checks to prevent abuse of power and recognition of a democratic Europe. The relationship between the institutions is necessary not only to have the voice of the people of Europe heard but also implemented, I fear that a constitution that separates the powers will not allow for this, a stricter approach will be applicable and leave no leeway for development in light of changes.
Bibliography
Constitutional and Administrative law- Hilaire Barnett4th Ed.
Blackstones EC legislation 2003-4 N. Foster
EU Law, Craig and De-Burca 2003
European journal if international law
The Jean Monnet programme
www.bbc.co.uk/europe
E.g. Article 22, 89, and 94 are a few examples.
Case 138/79, Rouquette Freres v. Council (1980) ECR 3333
M. Westlake The commission and the parliament; partners and rivals in the European policy making process.
De Burca: European parliament conciliation handbook, 2001.
