- By Jamie Shea
In this series of articles for Critical Thinking (published on 9 May, 14 June and 8 July), I have been making a case for strong European government above the level of the nation-state. Proposed reforms focus on a concentration of executive authority on the Commission, the democratisation of the Council, and the reinforcement of the single currency by way of fiscal union.
This fourth piece is about how the emergence of a more discernible federal government of the EU calls into being a more powerful and distinctly federal parliament. It is unconscionable, for example, that the European Parliament should be given powers to vote on taxation of EU citizens (as we propose) without first acquiring fuller democratic legitimacy.
The assumption of greater responsibility by the European Parliament implies reassessing its representative capability as well as its working methods. This will not be easy: we know that self-criticism does not come easily to parliaments, and sitting deputies tend to favour the status quo over any constitutional reform of any kind that threatens their re-election. Since the entry into force of the Lisbon treaty in 2010, Parliament has merely tinkered on the edges of further reform, evading critical choices.
The European Parliament is widely held, and not just among its detractors, to have something of a legitimacy problem
Not that MEPs have always been reticent in seeking more powers for themselves, usually to the irritation of the Commission, Council, and national parliaments. More than 40 years since it was first directly elected by universal suffrage, the European Parliament has accrued many official functions comparable to those of an established parliament of a nation-state. Through every round of treaty change, the evolution of the European Parliament has kept pace with the increasingly state-like character of the Union. Indeed, there has been something of a trade-off between powers for the Parliament and powers for the European Council.
Of course, MEPs have exercised some of their functions better than others. And Parliament’s informal political authority has not developed commensurately alongside its formal powers. The European Parliament is widely held, and not just among its detractors, to have something of a legitimacy problem. One may hope that the Conference on the Future of Europe, which is still in search of a role, will shake Members of the European Parliament out of complacency about their own institution.
The problem of party
Nobody really likes political parties, but we know they are an indispensable prop to healthy representative democracy. Political parties are the conduit between citizen and authority, defining political choice for the electorate and establishing career paths for the elected. They sharpen partisan contest and conduct arbitrage within parliamentary assemblies. In a federal system political parties play the additionally important roles both of assisting transversal cooperation among like-minded political forces in the member states and of facilitating vertical coordination between the different tiers of multilevel governance. In top EU circles, too, party affiliation has begun to matter in the permanent three-way negotiation between Parliament, Commission and Council in the matter of law making and jobs.
The EU is not yet a proper federal union because it lacks a decent budget and a common fiscal policy. Nor does it have federal parties. The prototype European political parties created at the time of the first direct elections in 1979 have not developed much beyond tentative confederations of national parties. Their main job is to minimise or disguise differences between their member parties during a European election. They are forbidden by national and, absurdly, EU laws from campaigning directly in those elections. Very few citizens have taken up the offer of individual membership of a European party. Candidates for the European Parliament are selected, financed, and deselected by national parties which, being congenitally preoccupied by national issues, are usually ignorant and often suspicious about the European dimension.
The party groups which run the European Parliament are not accountable to EU parties. Belonging to a parliamentary group is not contingent on membership of an EU party. Enthusiastic policy papers issued by the EU parties often bear little resemblance to the stance of the associated groups in Parliament.
A federal election
Europe’s federal parties will not emerge by accident but only by competing against each other for votes and seats at a European election. This is not the case today. There is no supranational element to elections of the European Parliament which really remain 27 separate and disconnected national contests. Most voters remain blithely ignorant of the personalities and transnational issues at stake, and it is no surprise that turnout is low. Even the hardcore Brussels media find it difficult to distinguish the pan-EU dimension of a European Parliamentary election campaign.
Parliamentary Europe is in urgent need of a democratic jolt
Parliamentary Europe is in urgent need of a democratic jolt. This will come from electoral reform that installs a pan-EU constituency for which a portion of MEPs are elected from transnational party lists. Initially, at least, the number of federal MEPs can be modest, but enough to render the elections truly European and build a cadre of parliamentary leaders dedicated to the representation of their party rather than their state. Every voter in European Parliament elections will be given a second — and equally valued — vote for the federal list, in addition to the one they already cast for their national or regional list. Most voters should enjoy the gift of such a concrete expression of EU citizenship — especially those disenchanted by their own lacklustre national parties.
Naturally, smaller states may fear that only candidates from big countries will make it into Parliament from transnational lists. To ensure diversity, therefore, the lists must be drawn from a large number of member states — say, at least two-thirds. Candidates will be ranked on lists pre-ordered by the EU political parties so that, for example, no more than two persons of the same nationality appear in any cohort of 10 federal candidates.
Such electoral reform will fulfil the Treaty of Rome’s original injunction that Parliament should be elected by a uniform procedure as well as giving expression to the Treaty of Lisbon’s formulation that it “shall be composed of representatives of the Union’s citizens” (and not those of the states). But to give effect to these changes requires a revision in the primary law of the Union, meaning unanimity in the Council and an absolute majority in the Parliament — followed by EU secondary legislation and changes to national electoral law in several member states. It is a logical but complex package, involving amongst other things the creation of an EU Electoral Authority to oversee the federal element.
Although the introduction of transnational lists has been canvassed by federalist MEPs for some years, it has been blocked by a coalition of their nationalist and conservative opponents. Perhaps the Conference on the Future of Europe can be persuasive and set Parliament’s sights on completing the reforms in time for the 2029 elections, marking the 50th anniversary of direct elections.
Bury the Spitz
One immediate change in Parliament’s thinking is necessary if it is to avoid another blow to its prestige when the next President of the Commission is chosen in 2024. Top candidates in the elections should reconcile themselves to seeking advancement in the hierarchy of Parliament and should drop the attempt to be nominated by the Parliament as Ursula von der Leyen’s successor. MEPs should stick to the treaty rules — which give the job of nominating the Commission President to the European Council and the right of his or her election thereafter to the Parliament. By attempting again to reverse the thrust of the appointment process, as it did in 2014 and again half-heartedly in 2019, Parliament would trigger a constitutional crisis, risking another rebuff from the European Council and a further decline in popular legitimacy.
In any case, it is highly unlikely that in 2024 the lead candidate of any party could acquire the necessary high levels of cross-party support in the newly elected Parliament to make a bid for the Commission presidency against the wishes of the European Council. Instead of flogging the dead horse of Spitzenkandidat, it would be more tactical, as well as tactful, for Parliament to take more seriously their treaty-given right to reject the nominee of the European Council — in which case, the European Council has one month in which to come up with a better candidate. In the grander scheme of things, it’s always better for a parliament to block a government appointment than the other way around.
The treaty, purposedly, gives the right of initiative on electoral reform to the Parliament. This right is extended to the business of reapportioning parliamentary seats among the member states — a task which will in any case have to be undertaken when transnational lists are introduced for the federal MEPs. In the past, the apportionment of seats has been an ad hoc, and frequently unseemly, scramble. To stabilise the Parliament and to ensure a fair distribution of MEPs between states of different sizes according to the principle of degressive proportionality, an arithmetical formula needs urgently to be agreed. The rationalisation of the system for composing the Parliament would also reassure, among others, its critics in the German Federal Constitutional Court.
The optimum solution would be to give every state five seats and to allocate the remaining seats proportionately to the size of population, using the divisor method with upward rounding. This would meet the requirements of the treaty and allow for a redistribution of seats every five years to take account of population shifts or the changing number of member states in an objective, fair, durable, and transparent way. The Conference on the Future of Europe would do well to prepare the ground for this revision to EU primary law.
Committees of inquiry
Another area where the European Parliament, rather than the Commission, has the right of initiative concerns the establishment of a system of parliamentary inquiry. Here again, however, MEPs have failed to punch their weight. According to the current system, Parliament’s committees of inquiry lack the power to subpoena witnesses, have only limited access to documents and have no way of imposing sanctions and penalties on transgressors. Decent parliaments are tough inquisitors.
Right of initiative
Some MEPs will propose a change to the treaties to give Parliament a much wider right of legal initiative than it has now. It will be difficult to justify such proposals unless Parliament shows itself capable of exploiting to the full the more limited rights of initiative it already enjoys.
Parliament should also be careful what it wishes for
Moreover, that far-reaching demand would have to be judged against the effectiveness of the current treaty rule whereby Parliament — voting by absolute majority and on the basis of a detailed justification — can request the Commission to initiate a new law. This practice has worked until now, with more than 25 requests being made since the Treaty of Lisbon entered into force, and the Commission responding positively on a number of issues. Parliament should also be careful what it wishes for: the granting of a right of legislative initiative to the Parliament would immediately be trumped by the Council demanding the same privilege. In areas of cooperation in police and judicial affairs where the Council has already been granted the exceptional privilege of sharing legislative initiative with the Commission, there is tension and confusion. If this practice were to be inflated, the Commission would be much enfeebled and the Community method, invented by Jean Monnet, would be put in great jeopardy.
There may be a case for allowing individual MEPs to fly legislative kites out with the constraints of committee or group. But few national parliaments in Europe follow the United States Congress in granting an unfettered right to any individual MP to table a draft law. In most states it is the government of the day which proposes laws and steers the legislative agenda: again, what the EU misses more than a hyperactive Parliament is a decent government.
Checks and balances
Tougher scrutiny of the EU’s heads of state and government may even sharpen their performance
Parliament needs to expand its powers to question the Council when ministers act in their executive rather than their legislative capacity. At present, oral and written parliamentary questions are directed only at the Commission. The President of the European Council agrees to answer questions from MEPs about his own agenda but he refuses to take formal questions about the internal affairs of the body he chairs or to elaborate on formal communiqués. His appearances in Parliament’s plenary after each meeting of the European Council are an inadequate method of scrutiny and do neither institution a service. Tougher scrutiny of the EU’s heads of state and government may even sharpen their performance.
The Commission fares better than the Council in terms of parliamentary accountability. Even in the difficult circumstances of the coronavirus pandemic, Commissioners have had to justify themselves regularly before parliamentary committees which in many cases evince a superior degree of expertise. Parliament is least effective in plenary, whose sessions badly need an injection of energy to achieve a more sustained critical dialogue with President von der Leyen.
It is not certain that Parliament will wish to re-open the question of holding individual members of the Commission to account in case of misdeed. At present, Parliament only has the power to censure the Commission as a body leading to the resignation of the whole college. A modest reform, short of sacking, would be to enable Parliament to vote to reduce the salary of any errant Commissioner.
La cuisine interne
The European Parliament is at its most assured amid the thicket of EU law making. The combination of committee and group discipline helps MEPs level up to their co-legislators in the Council when enacting the Commission’s complex legislative packages, such as the current ‘Fit for 55’ on climate action and green transition. The necessity for intelligibility inside a trilogue with Commission and Council, amendment by amendment, does wonders for Parliament’s coherence. Faced with an external threat, Parliament also showed an impressive degree of cohesion over Brexit.
It is when Parliament has to step away from the conventional left/right dynamic and confront issues across the federalist/nationalist faultline that it works less well. On constitutional matters, Parliament faces a hostile Council masking a rabble of member states divided among themselves. As the insipid approach of the Commission to the Conference on the Future of Europe exemplifies, the Commission appears to be nowhere in this tussle for power. Isolated as it is, without the prop of political parties or public opinion, the European Parliament can seem nervous and incoherent when it comes to treaty revision.
More emphasis on party and less on nationality would ginger up the institution
As we have argued, a new style of parliamentary leadership spawned by the introduction of transnational lists should help the House in this respect. Moreover, modest changes to the internal rules of the Parliament could encourage the promotion by merit of talented MEPs to the important posts of committee chair, group coordinator, and rapporteur. Groups should rely less on placement by virtue of the size of national delegation according to D’Hondt: here again, more emphasis on party and less on nationality would ginger up the institution and enhance what academics call input legitimacy.
Greater transparency over the internal operation of the House will alter the picture of bland mediocre consensus which all too often characterises the public image of Parliament. As the Commission, reduced in size and more political, begins to think and act like the government of the Union, so will the normal dynamics of government and opposition percolate through the Parliament. Once stable majorities and minorities begin to shape Parliament’s policy and law-making processes, citizens will be in a better position than they are now to engage with Europe’s federal level.
Taken together, these reforms would revitalise the European Parliament and make it fit for the multifarious tasks befitting a strong parliament for a federal union. The Conference on the Future of Europe must not forget to remind the Parliament that its most important constitutional power is the right to initiate a revision of the treaties. MEPs should be busy refining their proposals for deeper political integration, guided by threefold objectives of efficacy, accountability, and transparency. Parliament’s priority for institutional change should be the elimination of special laws of the Council and the extension of codecision with the Council to all legislation.
No matter what the outcome of the Conference, the next revision of the EU treaties will need to be preceded by a constitutional Convention. Happily, it falls to the Parliament to insist that that Convention is timely and well led. It seems that the next President of the Parliament, to take office in January 2022, will be Manfred Weber, the current group leader of the European People’s Party. Weber will be a very political President and, once relieved of the shackles of the EPP (and with Merkel gone), he should certainly be capable of steering MEPs and a Convention in a determinedly federal direction.
Andrew Duff’s new book, ‘Britain and the Puzzle of European Union’, is published this month. He was a Liberal MEP from 1999-2014.
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