THE FRAGILITY OF EU LAW

Judith Merkies Alvaro Renedo Zalba

Laws in stone

Since the biblical tale of Moses carving laws in stone, laws have the image of being untouchable and cold. They seem to be set in stone. But are they really? Wherever there is society, there is law -ubi societas, ibi ius. The tendency of law to mirror society poses challenges in a fast-changing world. The (EU) has proven to be a union of those who believe in the benefits of standing strong together. Its legal and institutional system is founded on treaties and a common acceptance of the EU’s validity and importance as a shared project of supranational integration. Still, the content of the system and degree of acceptance are influenced by turbulent political changes and crises EU Member States and institutions may face, as shown by Brexit and COVID-19.

The EU institutions responsible for lawmaking, the Council and the European Parliament, on the basis of the ’s right of initiative, move with the political tide. This tide and the complexity of EU lawmaking make EU laws hard as stone, albeit in a “butter soft” way. The process of EU lawmaking still has to match the sturdiness of EU law. The EU has proven that destiny is linked to policy, and can be made and shaped by hand. This article will argue that it is this process of lawmaking that is “butter soft”, not the validity of its outcome.

The importance of EU law

Before addressing the process of law making, let us first address the importance of European law.

The European Union is, quintessentially, a legal construct. Walter Hallstein, the German Christian-democrat, who in 1958 was appointed as the first President of the European Commission, referred to the European Economic Community -the predecessor of today’s EU- as a “Community of Law”. The Primary Law of the (chiefly, EU Treaties) and Secondary Law (directives, regulations, decisions, etc.) of the EU permeate the lives of hundreds of millions of European citizens from currently 27 Member States, the special Member State territories and – partly – countries in the European Economic Area. With this figure in mind, it is clear that EU law, with the limits and shortcomings it may have, constitutes the basis of the most sophisticated project of supranational integration in the history of mankind.

For an EU Member State, EU affairs amount to domestic policy. The immediate impact on the national political sphere of the decisions made daily in EU institutions, along with the symbiotic entanglement between EU and domestic institutions, warrant this consideration. Decisions made in the EU have domestic resonance in ways that have led many to identify a quasi-federal nature in EU polity. Press conferences delivered after European Councils are addressed to a variety of international audiences, but also – and perhaps foremost - to domestic constituencies, which thoroughly scrutinize a Government’s capacity to uphold and defend national interest within EU institutions. The one-minute addresses, in the plenary, on impending votes on legislation by Members of European Parliament (MEP) are mainly recorded for their voters back home.

1 One of the most eloquent examples of this domestic resonance is EU law.

From a strict technical perspective, EU law is a sub-system of Public International Law, as it is founded on the consent of sovereign nation states and the treaties-based system agreed by them. However, the applicability -and on many occasions, direct effect- of EU law in the domestic sphere makes it, from both a de facto and a de jure point of view, “law of the land” for every Member State. An important aspect of the domestic “feel” of EU law is the national representation on both sides of the legislative axis in the European Union. The voice of the national government is heard in the Council and the voices of the elected representatives in the European Parliament. The nature of EU law is, thus, complex and sui generis, as highlighted in European case law. Recent judgement Achmea C-284/16 and Opinion 2/13 underscore that EU law it is an “autonomous“ legal order, and it deploys primacy over all national law, including constitutional provisions -at least in the Court of Justice of the EU’s understanding of its own legal order. This goes well beyond ordinary sub-systems of Public International Law. EU law is an entirely new and different legal creature.

The importance of EU law for Member States is, thus, clear, both from a qualitative but also quantitative perspective: not only is it law of the land, it is a quite important source of it in proportion to overall legislation. Quantification studies and claims vary on the exact percentage or proportion of EU laws within Member states (some substantiate that this proportion exceeds 80% of overall legislation, others consider it is around 50%). It is safe to sustain, in any case, that a significant chunk of laws that are currently in force and define the respective frameworks of coexistence for EU citizens has its origin in the EU.

Moreover, it must be highlighted that this importance is not limited to Member States. It is commonly asserted that the EU’s normative identity translates into normative power: rules and standards agreed within the EU become, not infrequently, international rules and standards. EU law has turned into a significant source of international standard in many fields, including data protection, environmental protection or competition.1 This comes as no surprise, taking into account that EU exports accounted in 2018 for 15.2% of global exports, and EU imports 15.1% of global imports, making it one of the world’s biggest trade players alongside the US and China.2 The EU currently has 116 trade agreements in place or in the process of being updated or negotiated.

The fragility of EU law

As important as it undoubtedly is, EU law is at the same time quite sui generis in nature. It presents unique features which could perhaps be interpreted as symptoms of “fragility”. In which sense, however? Fragility has different meanings.

The first meaning of fragility is “easily broken or damaged”. The etymology is Latin, fragilis, brittle. We do not claim EU law is “fragile” in the sense of “easily broken”. EU law is firmly embedded, as said, in the legal systems of 27 Member States. In order to modify Primary Law (EU Treaties), unanimity amongst the Member states is required, which is quite difficult to achieve. Similar issues arise with regard to Secondary Law (regulations, directives, etc), which frequently requires a qualified majority to be modified; when the legislative act was not proposed by the Commission, such majority will require that 72% of the Member States and 65% of EU population support it. This is a daunting task shrouded in a complex procedure.

1 Bradford, Anu. (2012). The Brussels Effect. Northwestern University Law Review. 107. 1-68. 2 https://www.europarl.europa.eu/news/en/headlines/economy/20180703STO07132/the-eu-s-position-in-world- trade-in-figures-infographic. 2

But there is another meaning of “fragile” which could apply to EU law: “vulnerable”. One could fairly consider that EU law is “vulnerable”, owing to its inherent political and politized nature. Many would argue, and rightly so, that every law system is political, owing to the fact that it derives primarily from political legislative institutions, namely parliaments. This is, of course, true. However, EU law presents singularities in terms of “political vulnerability or fragility”. Here are five of these singularities.

1. Key role of domestic executive branches in the common EU legislative procedure, known historically as “co-decision” or the “communitarian method”.

According to this method -which is, as its denomination indicates, the most common of EU lawmaking procedures-, a proposal by the European Commission is adopted jointly by the two co-legislators: the Council of the EU and the European Parliament (EP).

An important note here: The Council of the EU is comprised of the Ministers of the Member States. Thus, European governments carryout a key legislative role. Arguably, this could seem striking from the perspective of Montesquieu’s classic of division of powers.

THE LEGISLATIVE POWER IN THE EUROPEAN UNION Most decisions are taken by co-decision, between the Council and the European Parliament

1. European Commission The right of initiative Independent/individual power: Commissioner of Competition 1 3. European Parliament 2. Council

3 The Axis of Legislative 2 Power

4 5

5. European Court of 4. European Council Auditors 64

6. European Court of Justice

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Also, it must be noted that the Commission has a monopoly of legislative initiative. Whereas the Council represents the diverse interests of the Member States and is made up of Ministers from these Member States, the Commission embodies the general EU interest and is comprised of 27 European Commissioners. These Commissioners are neutral and independent in statute, but each Member State proposes one, which will have to be confirmed (and elected) by the European Parliament, according to the process laid out in article 17 of the Treaty of the European Union. The political origin, however, of the Commissioner is a proposal by a national executive branch, without prejudice to the subsequent process of “magical” conversion which takes place when the Commissioner is elected and thus adheres to the statute of neutrality and independence inherent to the College of Commissioners, and vows to promote the interest of the European Union as a whole.

2. The vulnerability of the legislators in the European Parliament

Most politicians in the first legislature of the European Parliament, in 1979, had a double mandate, a local or national mandate, combined with the elected seat in the European Parliament. As the role of the Parliament changed, from commenting to consulting to co- decision in 2009, the day to day work of the Members changed considerably. The European parliamentarians evolved from representation to legislation. With the Treaty of Lisbon, the EP extended its powers as co-legislator, along with the Council on EU lawmaking. The role of the EP has changed, but its Members had not. They are elected for their political visions, not for their legal skills. The members of the Council have their Ministries back home to support their legislative task, whereas the individual members of the EP have no such resources. This void has been filled by lobbyists, having increased considerably in number after 2009. Lobbyists represent a cause, be it for an NGO, a charity foundation, institution, and of course most notably a company. Lobbying might have a bad ring to it, although it is also necessary in order to weigh and balance the interests of stakeholders and interest groups in society. However, the disbalance comes in with the different resources backing these lobbies. Some associations have access to large legal resources, whereas others don’t. MEPs face the task of deciding on a multitude of complex legal texts, usually on highly technical issues. Then comes along an external legal expert representing a stakeholder, usually with stakes in the constituency of the MEP. The MEP, having no legal resources of his own, may see no other option than to accept the help of organizations/companies sharing his political views, in order to amend or support the legislation accordingly. The EP has been the most lobbied institution in the EU since 2009. It is the most vulnerable and accessible.

3. Role of the national Parliaments of the Member States in EU legislative procedures.

The Treaty of Lisbon, which entered into force on December 1st, 2009, introduced an important innovation in EU legislative procedures: it attributed a say in EU lawmaking to national Parliaments by means of the so called “Early Warning Mechanism”. By virtue of this mechanism, national Parliaments scrutinize EU law proposals and consider whether they abide by the principle of subsidiarity. In a nutshell, and simplifying, if Parliaments consider that a proposal goes against such principle, and certain thresholds are met (for example, one-third of the national parliaments, or simple majority in the case of the common legislative procedure), the draft proposal will be reviewed. This is known as the “yellow” and “orange” card procedures. It is a well-known fact that the Early Warning Mechanism has been rarely activated. One of the main reasons for this, is the tight eight-week period during which national

4 Parliaments can try to block a proposal. The European Council tabled a proposal in 20163 to extend this period to 12 weeks, but it never entered into force.

The principal of subsidiarity is one of the guiding principles not only of EU lawmaking but of EU decision-making procedures in general. There are at least three possible definitions: 1. The first one can be inferred from Article 5 TEU: a European legislative act is justified when it can be considered that the aim it pursues can be reached, in a better, more efficient way, at a European level, than at a domestic or sub-domestic (regional or local) level. 2. One of our all-time favorite definitions of the principle of subsidiarity is an old British adage: “it is necessary not to act, when it is not necessary to act”. 3. Jean-Claude Piris, on the most authoritative figures in EU law, sums up the principle in a short question of almost existential nature: is it worth acting?4

The introduction of national Parliaments in EU lawmaking procedures, heralded as an important advance in democratic terms, makes the system more complex. It has been rarely used and should be overhauled to be made for effective. The “Early Warning Mechanism” has not met expected utility predictions. National Parliaments hardly make use of this mechanism, which has not resulted in key amendments or decisive changes of EU policy.

4. Comitology.

The word makes many politicians shudder -although not nearly as much as “hotspots”, during the immigration and asylum crisis. Comitology are decisions taken by groups of mandated civil servants or experts supervised by the European Commission. These decisions are formally known as implementing and delegated acts. The idea behind the process of comitology is not to burden politicians with technical, bureaucratic, or rubberstamping decisions. This makes sense in a lot of cases where admission, standardization, or certification is a mere matter of compromise or a common choice. However, even technicalities can harbor ethical or political questions, which, notwithstanding their sensitive nature, risk to be rubber stamped without political back-up or due consideration. The Commission has a leading role in these decisions which the Parliament and the Council cannot amend.

5. The role of the European Council in EU-law making procedures.

The European Council constitutes the pinnacle of power in the EU institutional system. It is comprised of the Heads of State or Government of the Member States, plus the President of the European Council and the President of the European Commission. It has a preeminent political role, laid out in article 15 of TEU: The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.

3 The European Council meeting of 18 and 19 February 2016. https://www.consilium.europa.eu/media/21787/0216-euco-conclusions.pdf 4 Piris, Jean-Claude. The Lisbon Treaty: A Legal and Political Analysis, Cambridge Studies in European Law and Policy (Cambridge University Press, 2010). 5 The European Council is not to be mistaken with the Council of the EU, comprised of Ministers, and which does carry out a fundamental legislative role. Neither should it be mistaken with the Council of Europe, an international organization created in 1949 and comprised by 47 Member States, many of them not being members of the EU, like Russia or Turkey.

Although the Treaties explicitly exclude the de jure conferral of legislative powers to the European Council, experience of most European politicians and civil servants attending European Council meetings for many years is that this institution exerts a crucial de facto influence on legislative procedures. Deadlocks in negotiations between the co-legislators are often rerouted to the European Council for a breakthrough as Chef-Sache. There are two fundamental explanations for this, the first one pertaining to domestic political hierarchy, and the second to a teleological interpretation of the European Council’s mandate.

Let’s start with the first one, pertaining to domestic political hierarchy. One must take into account that the members of the European Council are the bosses of the members of the Council of the EU and party colleagues of the Members of European Parliament that belong to their respective political parties. In principle, Presidents and Prime Ministers have direct power, usually, over the Ministers of their respective Governments. It is not too difficult to conceive a President picking up the phone and calling one of his Ministers to tell him or her: we need an agreement of this or that legislative dossier; make it happen, get a move on. For example, in 2012, during one of the most acute moments of the Euro-crisis, Finance Ministers in the Council where dragging their feet on the adoption of the Regulation of the Single Supervisory Mechanism, owing to differences in national positions. When things got ugly and a positive political breakthrough was needed in order to underpin, in the eyes of the markets, the Euro’s financial resilience, the European Council called upon the legislators of the Union to expedite the works on the Single Supervisory Mechanism, one of the pillars of the so called Banking Union. And, small wonder, the Ministers in the Council reached a deal.

The second explanation is closely linked to the first one and refers to a teleological interpretation of the legal mandate of the European Council. The Treaty (the aforementioned article 15) bestows upon the European Council a high political purpose: to provide the Union with the necessary impetus for its development and define the general political directions and priorities thereof. It can be reasoned that, when required, such impetus and directions may translate into a political force exerted on the legislators (especially, the one it controls more, the Council); especially when the political stakes are high. This has been the case of the diverse crises faced in past years, namely the economic/financial crisis, and also the migration and asylum crisis.

The fascinating consequence of this force, from a legal and political perspective, is that the European Council, in its “crisis management role” and as the supreme political arbiter, is carrying out a high function of constitutional nature. Not only is it influencing EU lawmaking as such; it is decisively contributing to the definition of the political contours of the Union, and, ultimately, shaping Europe’s future.

Conclusions.

“Fragility” in EU lawmaking underlines the inextricable relation between rules and policy, between law and destiny. Such “fragility” is a result of complex decision-making

6 procedures associated to multilevel governance.5 However, it can also be argued that this “fragility” reinforces the legitimacy of EU Law -by virtue of the aforementioned decision making procedures, stakeholders from diverse levels of governance participate, including national parliaments. EU lawmaking processes are extremely complex as they intertwine different interests and institutions. The overall result is a very legitimate normative product.

Moreover, this legal system has what is arguably the most powerful system of international judicial protection in the world.6 The EU legal order is supported by a formidable court with formidable powers. The Court of Justice of the EU acts together, in coordination with national courts through the preliminary reference procedure. This court has enforcement powers -as well as an infringement procedure in the hands of the Commission and any Member State-, and its judgments are binding and retroactive. It’s a formidable machinery at the service of the effectiveness of EU law.

EU law, in sum, is a legal order backed by a high degree of legitimacy -reflecting consensus between interested parties-, and a powerful judicial system. Although its “fragility” entails vulnerabilities, its complexity may well be contribute to its strength.

This article is the written and reworked version of a talk held at the Harvard European Law Association Talk on October 29th, 2019.

Acknowledgements

The authors gratefully acknowledge the support of the Harvard European Law Association - in particular, its President, Jenny Liang - as well as the Project on Europe and the Transatlantic Relationship at Harvard Kennedy School’s Belfer Center for Science and International Affairs, and the Minda de Ginzburg Center for European Studies of Harvard University. We also thank Professor Daniel Sarmiento, eminent EU law scholar, for his invaluable insights.

About the authors

Alvaro Renedo is a Fellow at the Belfer Center for Science and International Affairs at Harvard Kennedy School, where he works on the Project on Europe and the Transatlantic Relationship. As a career diplomat, he served as Director of the Department of European Affairs and G20 in the Presidency of the Government of Spain from 2016 to 2018. He was the Spanish Sous-Sherpa both in the European Union and the G20, and was responsible for European and G20 policy within the Cabinet Office of the Spanish Government. As an academic, he was Associate Professor in the Complutense University of Madrid (Department of Public International Law and International Relations).

He is the author of the following studies: “Transatlantic Dialogue: The Missing Link in Europe’s Post-Covid-19 Green Deal?”, co-written with Juergen Braunstein (Belfer Center for Science and International Affairs, Harvard Kennedy School, April 2020); “The Evolution of the Legislative and Budgetary Powers of the European Parliament: Theory and Praxis in

5 Wallace, H., Pollack, M., & Young, A. (2010). Policy-making in the European Union. 6 See Sarmiento, Daniel (2018). Derecho de la Unión Europea. Marcial Pons, Madrid. 7 Communitarian Democracy” (in Diplomacy and International Relations, vol. I, Publications of the Spanish Diplomatic Academy, Spain, 2008); and “The Spanish Presidency of the European Union and the Fight Against Child Poverty and Social Exclusion” (in Child Poverty and Social Exclusion: Building Equity... Childhood Development, Comillas Pontifical University, Child Platform, Spain, 2012).

Judith Merkies is a former Member of the European Parliament (2009-2014) from the and has worked for the European Commission. Her main focus is (disruptive) innovation and digitalization policy in the European Union. In the European Parliament, she was the Rapporteur on the Innovation Union. She is trained as a lawyer and started her professional career at international law firm Nauta Dutilh. Currently she works as a lawyer in European Law in Frankfurt and Brussels and teaches at the Duale Hochschule Baden- Würtemberg in Mannheim.

She is the author of “The lease society: the end of ownership. Cross Media Printing Unit, Belgium. (2012)” and (co)authored many opinion articles in Dutch and international newspapers.

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