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The European Parliament As a Driving Force of Constitutionalisation

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The European Parliament As a Driving Force of Constitutionalisation DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS CONSTITUTIONAL AFFAIRS THE EUROPEAN PARLIAMENT AS A DRIVING FORCE OF CONSTITUTIONALISATION STUDY Abstract This report analyses the increasing role played by the European Parliament (EP) in the EU decision-making process. In the first part (Sections 2, 3, 4 and 5), it describes how the EP acquired more power in legislation, comitology, in the appointment of the European Commission and in the budgetary field. In the second part (Sections 6 and 7), the report illustrates the EP’s role in two relevant policy fields: economic governance and external trade agreements. The report demonstrates that EP’s formal and informal powers in legislation, comitology, Commission investiture, the budgetary process, economic governance and international agreements have increased strikingly since the Treaty of Rome. This empowerment is partially explained by the concern for democratic legitimacy on the part of some member states’ (and the Commission). To another important part the empowerment may be explained by the fact that treaties frequently contain ambiguous provisions and thus allow room for informal rules to emerge through bargaining specifying the details of treaty provisions. PE 536.467 EN This study was commissioned by the policy department for Citizen's Rights and Constitutional Affairs at the request of the AFCO Committee. AUTHOR(S) Adrienne Héritier (Project leader), Catherine Moury, Magnus G. Schoeller Katharina L. Meissner, Isabel Mota. RESPONSIBLE ADMINISTRATOR Mr Petr Novak Policy Department Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR To contact the Policy Department or to subscribe to its monthly newsletter please write to: poldep- [email protected] Manuscript completed in October 2015. European Parliament, © European Union, 2015. This document is available on the Internet at: http://www.europarl.europa.eu/committees/en/supporting-analyses-search.html DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not neces- sarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. The European Parliament as a driving fforce of constitutionalisation ___________________________________________________________________________________________ CONTENT EXECUTIVE SUMMARY 6 1 INTRRODUCTION 13 2 THE ROLE OF THE EUROPEAN PARLLIAMENT (EP) IN LEGISLATION,, FROM COONSULTATION TO CO-DECISION: THE NORMAL LEGISLATIVE PROCEDURE 14 2.1 From consultation to cooperation 15 2.2 From cooperation to co-deciision 17 2.3 Extending and transforming co-decision 17 2.4 Conclusion 18 2.5 References 18 3 CHANGING THE RULES OF COMITOLOGY: MORE COMPETENCES FOR THHE PARLIAMENT 20 3.1 Shaping the original comitoology system 20 3.2 The increasing influence of the EP 21 3.3 Co-decision brings about a sea change 23 3.4 Changing comitology under the Lamfalussy Reform, the Whhite Paper on Governance, the Convention and the Constitutional Treaty 25 3.5 Commission Rule Making under the Lisbon Treaty 27 3.5.1 Financial Instruments External Relations: Pre-accession IPA II 28 3.5.2 The Common Implementing Rule 28 3.5.3 Pre-accession Assistance (IPA II) 29 3.6 Conclusions 31 3.7 References 31 4 NOMINATING THE COMMISSION 32 4.1 Nomination and investiture of the Commission: formal chaanges 33 4.1.1 Consultation of the EP on the nomination of the President of the Commission (Maastricht Treaty) 33 4.1.2 Investiture of the Commission by the EP (Maastricht Treaty) 35 4.1.3 Approval of the Commmission President by the EP (Amsterdam Treaty) 36 4.1.4 Election of the Commission President by the EP (Lisbon Treaty) 38 4.1.5 Implementation of the Lisbon Treaty 39 4.2 A de facto rule never translatted into treaty change: the individual investiture of commissioners 41 4.3 Conclusion 42 4.4 References 45 3 Policy Department C: Citizens' Rights and Constitutionnal Affairs ___________________________________________________________________________________________ 5 THE EP IN THE BUDGETARY PROCESS 46 5.1 From the Treaty of Rome to the Budgetary Treaties 47 5.2 From the Budgetary Treaties to the Inter-Institutional agreeement of 1988 49 5.3 The 1998 Inter-Institutional AAgreement (IIA) 51 5.4 From the IIA of 1988 to the Constitutional Treaty 52 5.5 The Constitutional Treaty and Lisbon Treaty 55 5.6 After the Lisbon Treaty 57 5.7 Conclusion 59 5.8 References 61 6 THE ROLE OF THE EP IN ECONOMIC GOVERNANCE 63 6.1 Case studies 64 6.1.1 The Six-pack Legislatioon 64 6.1.2 The Two-pack Legislatiion 68 6.1.3 Eurobonds 70 6.1.4 The Fiscal Compact 71 6.1.5 The Banking Union 72 6.1.6 The Amendment of Article 136 and the ESM 75 6.2 Results 75 6.2.1 The Parliament’s Use of the New Lisbon Competences 75 6.2.2 The Parliament’s formal and informal channels of influence 76 6.2.3 The Parliament’s Strategies 79 6.2.4 The Parliament’s Role in economic governance: Interstitial Institutional Change? 80 6.2.5 Policy Implications and Future Challenges for the EP 81 6.3 References 81 7 THE ROLE OF THE EP IN EXTERNAL RELATIONS 84 7.1 Society for Worldwide Interbank Financial Telecommunicattion Agreement (SWIFT) 85 7.1.1 Rejection of the SWIFT Interim Agreement 86 7.1.2 Approval of the SWIFT agreement 87 7.1.3 Implementation of the SWIFT agreement 87 7.2 Anti-Counterfeiting Trade Agreement (ACTA) 88 7.2.1 Assessing the EP’s role in the negotiation on ACTA 88 7.3 The Transatlantic Trade and Investment Partnership (TTIP) 91 7.3.1 Assessment of the EP’s role in the TTIP negotiations 91 7.4 EU Singapore Free Trade Agreement (EUSFTA) 94 7.4.1 The EP’s role in EUSFTA negotiations 94 4 The European Parliament as a driving fforce of constitutionalisation ___________________________________________________________________________________________ 7.5 Additional cases 96 7.6 Comparison 97 7.7 Conclusion 100 7.8 References 101 8 CONCLUSION 105 5 Policy Department C: Citizens' Rights and Constitutional Affairs ___________________________________________________________________________________________ EXECUTIVE SUMMARY1 In recent decades the European Parliament (EP) has been extremely skilful in pushing forward its in- stitutional agenda in the direction of a parliamentarisation of the European political system. Parlia- mentarisation is an important component of the constitutionalisation of the European Union (EU).2 We define it as the process where a polity moves increasingly in the direction of government based on the support of a majority of members of a democratically elected parliament. The majority of rep- resentatives in the parliament then elect and support the government, which in turn is accountable to parliament. In a parliamentary system the parliament is responsible for legislation in all areas of decision-making including budgetary powers both as regards revenues and expenditures. In legisla- tive and budgetary matters the government/executive and its supporting majority in parliament has to face the critique of the opposition parties in the legislature. From the outset the European polity included the Council of Ministers as a legislator, composed of ministers of democratically elected national governments. The assembly, later the directly elected EP, constitutes the other legislator. Over time the EP has grown from a minor partner in the legislative procedure to a full co-legislator with the Council of Ministers. The members of the Commission are proposed and elected by member-state governments, and the EP confirms the Commission as a whole. From the outset the EP has had a right of political supervision over the Commission, whereas it has only gradually developed a role in influencing the composition of the Commission. Today the EP plays an important role in the investiture of the Commission. From the outset the Council and mem- ber-state governments played a prominent role in secondary legislation, or Commission rule-making, i.e. specifying the details of how primary legislation should be implemented in member states under the comitology system. Today the EP is almost a co-equal partner with the Council and member-state governments in the rule-making process of the Commission for secondary legislation. Over time the EP has gained increasing competences in the budgetary process as regards expenditures, non- compulsory and compulsory, if not as regards “own EU resources”. How can we explain the fact that the EP over time gained such important powers in the legislative process, the investiture of the Commission, in the area of the Commission’s implementing powers as well as in the budgetary process? How are these powers reflected in the substantive policy areas of financial and economic governance and external trade agreements? And how do these extended powers relate to an increasing parliamentarisation of the European polity? One key answer is that obtaining the role of co-legislator with the Council was crucial in developing the EP’s powers in all these areas. THE ROLE OF THE EUROPEAN PARLIAMENT (EP) IN LEGISLATION, FROM CON- SULTATION TO CO-DECISION: THE NORMAL LEGISLATIVE PROCEDURE3 What were the main forces driving the expansion of the EP’s rights in legislation from consultation to co-decision? From a process perspective we argue that the EP on the basis of a given formal institu- tional rule negotiated informal rules extending its power. Frequently it was able to obtain the formal- ization of the informal rules. In the period examined the EP has come a long way in expanding and strengthening its legislative powers until it has become a co-equal legislator with the Council of Ministers. The engine driving this expansion was the EP’s determination to strengthen its own role by re-negotiating ambiguous insti- 1 We are indebted to Paolo Ponzano for critical and constructive feedback on our analysis.
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