European Law Journal, Vol. 9, No. 5, December 2003, pp. 549–574.
© Blackwell Publishing Ltd. 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
European Parliament and Executive
Federalism: Approaching a Parliament in a
Semi-Parliamentary Democracy
Philipp Dann*
Abstract: The European Parliament has often been understood along the lines of theories of European integration—compared to regular parliaments by Federalists or belittled
as merely an international assembly by intergovernmentalists. This paper proposes an
understanding of the European Parliament not along theories about what the EU should
become, but what it is and surely will continue to be, that is a very distinct federal
structure. The European Parliament is a parliament in an executive federalism—with farreaching consequences for its form and functions. After outlining the characteristics of
this federal structure, these consequences will be demonstrated by analysing the European
Parliament in contrast with two ideal types of parliaments: the working parliament, separated from the executive branch and centred around strong committees (like the US Congress), and the debating parliament, characterised by the fusion of parliamentary majority
and government as well as plenary debates (like the British House of Commons). Dwelling
thus on a comparison to a legislature in a non-parliamentary federal system, like the US
Congress, this paper argues that the European Parliament might best be understood as a
special case of a working parliament. Finally, it will be proposed to consider the influence
of executive federalism not only as fundamentally shaping the European Parliament but
also as rendering the EU generally a semi-parliamentary democracy.
I Introduction
Making sense of the European Parliament has been difficult, so it seems, because
making sense of its surrounding political system, the European Union generally, has
been difficult. The institutional and systemic environment of a parliament is, however,
doubtlessly central to the understanding of how a parliament works. Most of the con* LL.M. (Harvard Law School), currently Referendar at the Landgericht Berlin. This paper is the shortened and revised version of my Jean Monnet Working paper (<http://www.jeanmonnetprogram.org/
papers/02/020501.html>) and my German doctoral thesis (Parlamente im Exekutivföderalismus, submitted at the Frankfurt University School of Law). I am deeply grateful for comments and encouragement from Joseph H. H. Weiler, Armin v. Bogdandy, Christoph Schönberger, Jürgen Bast, Alexander
Hanebeck, Jonas Liisberg, Felix Arndt, and Sheetal Asrani.
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ceptual literature about the European Parliament has therefore tried to understand its
object along the lines of theories of European integration in general: when European
integration is considered a federal undertaking, the European Parliament was measured
against ‘normal’ parliaments in national systems. Where European integration is
instead perceived as an intergovernmental process, it is more the national parliaments
that are considered the main parliamentary actors, and the European Parliament is
regarded only as an auxiliary actor, a mere assembly with minor powers.1 Following
these lines, it has recently been proposed that certain powers of the European Parliament be interpreted as a mixture of intergovernmental and technocratic aspects that
shape the EU generally.2 However, since it is unclear what kind of polity the EU is itself,
it seems even more problematic to decipher what kind of parliament the European
Parliament is (or should be) according to these models.
This paper therefore proposes to understand the European Parliament not along the
question of what the Union might be or should become, but what the EU already is
and will certainly continue to be—a multi-layered or federal structure.3 This includes
in the case of the EU not merely that EU governance and the institutional system
consist of different layers (supranational, national, in some states also subnational),
but also the specifics of how the interplay of these layers and their competencies is
organised. The EU is especially shaped by an interwoven structure of competencies.
Supranational and national levels are knit together in their tasks of law making and
implementation. The outcome of this structure is a heightened need for intensive executive cooperation and a consensual decision-making modus. This system has hence
been called an executive federalism.4
But how does this federal structure affect the European Parliament in its form and
its functions? An answer to this question will be sought in a comparative examination
of the European Parliament, analysing the parliament along two ideal types of legislatures: the type of a working parliament, on one side, as a legislature separated from
the executive and centred around strong committees (exemplified in the US Congress),
and the debating parliament, on the other side, as a legislature characterised by a fusion
of parliamentary majority and government as well as a mainly debating, not policymaking plenary (exemplified in the British House of Commons).5 Comparing the
1
2
3
4
5
See W. Wessels and U. Diederichs, ‘The European Parliament and European legitimacy’, in T. Bachoff
and M. Smith (eds), Legitimacy and the European Union (Routledge, 1999), 135–138; M. Kaufmann,
Europäische Integration und Demokratieprinzip (Nomos, 1997), at 229, 347; R. Dehousse, ‘European Institutional Architecture after Amsterdam’, (1998) 35 CMLR 595; also J. H. H. Weiler, ‘European models:
Polity, People and System’ in: P. Craig and C. Harlow (eds), Lawmaking in the European Union (Kluwer,
1998 [hereinafter: P. Craig and C. Harlow, Lawmaking]), at 3.
P. Magnette, ‘Appointing and Censuring the European Commission’, (2001) 7 ELJ 292–310. See also
M. Shackleton, ‘The European Parliament’, in J. Peterson and M. Shackleton (eds), The Institutions of
the European Union (Oxford University Press, 2002), at 95–117.
It should be underlined that using the phrase ‘federal’ does not imply a state-like construct. I use it as a
term for (organising) a multi-layered structure of governance, not with an implicit reference to a federalist approach to European integration. See D. Elazar, Exploring Federalism (Alabama University Press,
1987), 34; A. v. Bogdandy, ‘The European Union as a Supranational Federation’, (2000) 6 Columbia
Journal of European Law, at 51–52.
K. Lenaerts, ‘Constitutionalism and the many Faces of Federalism’ (1990) 38 AJCL 230–233; F. W.
Scharpf, Joint-decision trap: Lessons from German Federalism and European Integration, (1988) Public
Administration 239–268. See note 9 infra.
More about these types in Part III and note 32 infra.
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European Parliament and Executive Federalism
European Parliament step by step, or rather: function by function with these two types,
it can be identified basically as a working parliament. Not only will this comparative
analysis highlight how strong the parallels are between European Parliament and
American Congress,6 it will most importantly give a glimpse of the European Parliament as a very distinct type of parliament, which might best be labelled as ‘controlling
parliament’. The present paper thus suggests a re-thinking of our understanding of the
EP beyond the typically European model of debating parliaments and closer to the
American example. It might well be that the key to understanding the European Parliament lies in America.
By reconsidering the European Parliament along these lines, this paper also addresses
the question of how to square the parliamentary and majoritarian understanding of
democracy with the consensual, non-majoritarian, or as it may also be named, federal
nature of the EU.7 Instructed by the comparison with a legislature in a non-parliamentarian democracy, this paper presents the picture of a non-majoritarian system with
a strong federal legislature. The outcome, though, is neither a truly parliamentary nor
a presidential system. Instead, it is a system based on negative parliamentary power to
control the executive and a consensual method of decision-making. These aspects
will finally vindicate the proposal to characterise the EU with a new term, a ‘semiparliamentary democracy’.
The argument will be presented in three steps: Part II will analyse the federal and
institutional framework of the European Parliament. It will describe more precisely
what is meant by the term ‘executive federalism’. Part III will present briefly the two
ideal types of parliaments with which the European Parliament will be compared. Part
IV, the main part, will then analyse the European Parliament’s organisational form and
major functions of election, oversight, lawmaking, and representation. In constantly
comparing with the two types of parliaments it will spell out the main features of the
European Parliament as a controlling parliament will be expounded. Finally, in Part
V, conclusions will be drawn explaining why the EU can finally be characterised a semiparliamentary democracy.
II Executive Federalism and the System of Separated Institutions
Sharing Powers
The European Parliament is part of an institutional structure that is fundamentally
shaped by the fact that it is a multi-layered or federal structure. This system has been
called an executive federalism and shall be explained briefly along its three main
6
7
As to this comparison see also M. Shapiro, ‘The Politics of information: US Congress and EP’, in P.
Craig and C. Harlow, Lawmaking, (London) at 187–208; R. Corbett, F. Jacobs and M. Shackleton, The
European Parliament, 4th edn (John Harper, 2000), pp. 7, 213 [hereinafter: R. Corbett et al, Parliament];
E. Grabitz, W. Wessels, S. Steppat and O. Schmuck, Demokratisierung und Direktwahl (Europa Union,
1989), 52–54.
R. Dehousse, ‘Constitutional Reform in the European Community: Are there Alternatives to the Majoritarian Avenue?’ (1995) 18 Western European Politics 118, 125, 129; B. Kohler-Koch, Evolution and Transformation of European Governance (Institute of Advanced Studies, Vienna, 1998) at 2–18. Path-breaking
for the analogous problem in Germany G. Lehmbruch, Parteienwettbewerb im Bundesstaat 2nd edn
(Westdeutscher Verlag, 1998).
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characterising elements:8 the interwoven competencies, the Council as federal chamber,
and the consensual form of decision-making.
A
Three Characteristics of Executive Federalism
a)
Interwoven Competencies
First and foremost, the system of executive federalism is rooted in a structure of interwoven competencies. This means, quite simply, that making laws is the domain of the
supranational level, but implementing these laws is the domain of the national level.
Both layers, however, cooperate in the use of their powers—thus Member States help
make federal law and the federal level helps implement it. Both layers of the federal
system are thus knit together in the creation as well as the implementation of law.9
Within the constitutional order of the EU, this interwoven structure is based on Article
10 EC, which places on member states the duty to ‘take all appropriate measures to
ensure the fulfillment of the obligations arising from this treaty’ and entails a principle of loyal cooperation.10 In effect it means that the EU has (with some specific exceptions) no original competence to implement EU law, but the member states do.11
This system consequently leads to a strong need for executive cooperation. Detailed
communication, negotiation, and finally cooperation between both levels of the federal
system is necessary to adjust European legislative proposals to the already existing legal
and administrative systems that regulate the concerned questions in each member state.
This kind of cooperation is organised and harboured in a special institution which is
the second central element of the concept of executive federalism: the Council.12
b)
The Council
The Council can be regarded as the congenial institutional counterpart to the specific
division of competencies in the EU. Its composition, organisation, and powers offer
what the interwoven competencies require, that is, a meeting point for actors from the
national and supranational level, a meeting point for politicians and bureaucrats, a
place to negotiate, legislate, and implement.13 As such it becomes an absolutely central
institution of this federal system.
However, it is of special importance to note that it is not the parliaments and parliamentarians but only the executives of both layers that cooperate. Executives from
8
9
10
11
12
13
The concept of ‘executive federalism’ is close to the concept of cooperative federalism, yet different in
crucial aspects. More specifically see P. Dann, ‘Looking through the federal lens: The semi-parliamentary
democracy of the EU’ Jean Monnet Working paper 5/2002
<http://www.jeanmonnetprogram.org/papers/02/020501.html>, at 4.
This structure can most clearly be contrasted with the American model of a ‘dual federalism’, see
K. Lenaerts, op. cit. note 4 supra, at 231; M. Vile, Structure of American Federalism (Oxford University
Press, 1961), at 64.
Case C-476/93, Nutral v Commission [1995] ECR I-4125, para 14; K. Lenaerts and P. Van Nuffel, Constitutional Law of the European Union (Sweet and Maxwell, 1999), par. 8–010, also 11–042.
Exceptions are in the field of internal organisation (Art 274 EC) and most intensely discussed in the field
of competition law (Art. 81, 82, 86 III EC), see J. Suerbaum, Kompetenzverteilung im Verwaltungsvollzug
(Duncker & Humblot, 1998), at 110.
As overview descriptions see F. Hayes-Renshaw and H. Wallace, The Council of Ministers (St. Martin’s
Press, 1997) and M. Westlake, The Council of the European Union 2nd edn (John Harper, 1999).
As to the role of the Council, including the Coreper and the Working Groups, harbouring executive
cooperation, see W. Wessels, ‘Dynamics of Administrative Interaction’, in W. Wallace (ed.), The dynamics of European Integration (London, 1990), at 229; also P. Dann, op. cit. note 9 supra, at 6.
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the national level are at the core of lawmaking in the supranational level. However
inappropriate this might seem from a standpoint of separation of powers, it is the necessary consequence of an executive federalism. Since it is the national executives that
carry responsibility for finally implementing European regulations, they have to also
be consulted in the lawmaking procedures. The EU has interwoven competencies and
thus executive cooperation.
c)
Consensual Decision-Making
Finally, there is a third element of executive federalism that follows necessarily from
the interwoven structure of competencies and the system of executive cooperation:
consensual decision-making. Despite an often applicable majority rule,14 the Council
mostly adheres to the consensus or just Community method.15 Here, solutions are
sought through ongoing negotiations, openness to compromise, and the incorporation
of as many parties as possible (if not all). This method is based on mutual trust and
the expectation of gaining more by giving in to a certain extent, and being repaid in
another round. And it is in no minor part based on the secrecy and confidentiality of
the negotiations in the Council.16 In a sense, the Council thus adheres to two rules:
behind the formal majority rule there is an informal consensus method.17
Now, looking at the EU through the lens of executive federalism, the Council seems
to be almost necessarily a non-majoritarian system.18 Put differently, as long as the EU
has interwoven competencies and a Council organising the necessary cooperation
between the federal layers (i.e. an executive federalism), the Council has to work on a
consensual basis. Three main fundaments of this method might be distinguished: the
diversity of interest within the Union, the social and professional homogeneity of
actors within the Council,19 and finally, the necessity of a functioning implementation.20
In sum, executive federalism forms a coherent institutional setting with three
characteristic elements: rooted in a structure of interwoven competencies between the
14
15
16
17
18
19
20
As to the different forms of majority voting, see M. Westlake, op. cit. note 13 supra, at 88. Considering
the impact of the Treaty of Nice on these rules X. Yataganas, ‘The Treaty of Nice: The Sharing of Power
and the Institutional Balance’, Jean Monnet Working Paper 1/2001,
(<http://www.jeanmonnetprogram.org/papers/01/010101.html>), chap. B.1.
F. Hayes-Renshaw and H. Wallace, op. cit. note 13 supra, at 254; for a detailed account see D. Spence,
‘Negotiations, coalitions and the resolution of inter-state conflicts’, in M. Westlake, op. cit. note 13 supra,
at 364; for an account of early periods of the consensus mode see S. Krislov, C. D. Ehlermann and
J. H. H. Weiler, ‘The Political Organs and the Decision-Making Process in the United States and the
European Community’, in M. Cappelletti, M. Seccombe and J. H. H. Weiler (eds), Integration through
Law, Vol. 1, Book 2 (Nomos, 1986), at 37–50.
C. f. Arts. 5 and 6 Rules of Procedure of the Council, c.f. M. Westlake, op. cit. note 13 supra, at 146;
C. Sobotta, Transparenz in den Rechtsetzungsverfahren der EU (Nomos, 2001), at 63.
These two are intertwined: decision-making in consensus is facilitated by the possibility of a disputesettling majority decision. This has been called decision-making ‘under the shadow of the vote’
(J. H. H. Weiler, ‘The transformation of Europe’, in J. H. H. Weiler, The Constitution of Europe
(Cambridge University Press, 1999), at 72).
Similar R. Dehousse, op. cit. note 8 supra, at 125.
See Max Weber and his notion of ‘Kompromisskollegialitaet’ for bureaucratic actors interacting and
making deals. Weber, Wirtschaft und Gesellschaft 5th edn (Mohr, 1972) at 164. Also D. Chrysoochou,
The Consociational Dimension of European Integration (Center of International Relations Athens, 1994),
at 26.
As to the notion of implementation in the European context as meaning not only the adjudication of
general rules by local authorities, but also legislative actions taken by the Member States to adjust the
European laws to their respective national systems see P. Dann, op. cit. note 9 supra, at 10, note 45.
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federal layers, receiving from there its spin and institutional dynamic towards executive
cooperation in the Council as federal chamber and institutional core, harbouring the
necessary processes of cooperation and, third, a consensus method facilitating the
accommodation of the diverse interests.
A look at the German federal system, which is strikingly similar as to its federal
structure, not only underlines that these elements are deeply interlocked, conditioning
each other and triggering the specific institutional dynamic, but also brings home the
realisation of how resistant this system of federal cooperation is to change.21 Being a
principle of divided competencies, this system of executive federalism has made European integration work in the past half-century, and has never been questioned, despite
all current, vigorous debate about the allocation of competencies in the EU.22
B ‘Separated Institutions Sharing Powers’—An Analogy
Having described the EU so far as an executive federalism, and having pinpointed executive cooperation as its central institutional dynamic, the question remains, how does
all of this affect the parliament? For this question, an analogy to the institutional
system of the USA and its legislature, Congress (though odd at first glance,) is helpful.
How is this so?
It is an almost proverbial characteristic of the US Constitution to be based on a separation of powers principle.23 Yet, it is nearly equally well-known that this is only a
half-truth. As the doyen of American political science, Richard E. Neustadt, noted long
ago, the American system is rather a system of ‘separated institutions sharing powers’
than a system of separated powers.24
By analogy, it would be an uphill battle to argue that the European constitutional
system follows a strict principle of separated powers.25 Instead, the EU can quite precisely be described along Neustadt’s dictum. The European institutions are deeply intertwined when using their powers, but accurately separated with respect to their election,
their respective source of legitimacy and their personnel: Whereas the European Parliament is based on the peoples of the EU and direct European elections (Article
190 EC), the Council is based on national governments and their respective national
elections (Article 203 EC). The Commission is based on both strands together (Article
214 EC).26 The membership in all of these institutions is mutually exclusive. Although
21
22
23
24
25
26
E.-W. Böckenförde, ‘Sozialer Bundesstaat und parlamentarische Demokratie’, in J. Jekewitz (ed.), Politik
als gelebte Verfassung. Festschrift für Friedrich Schaefer (Westdeutscher Verlag, 1980), at 188; for a historical perspective also S. Oeter, ‘Souveränität und Demokratie als Problem in der ‘Verfassungsentwicklung’ der EU’, (1995) Zeitschrift für ausländisches öffentliches Recht und Rechtsvergleichung 659.
A. v. Bogdandy and J. Bast, ‘The EU’s Vertical Order of Competences’, (2002) 39 CMLR 227 ff.
The Federalist Papers No. 47 (Madison); the US Supreme Court in concurring opinion per Frankfurter,
in Youngstown Sheet and Tube Company v Sawyer (Steel Seizure Case), 343 U.S. 579, 593 (1952).
R. Neustadt, Presidential power and the modern presidents (Collier Macmillan, 1990 (1959)), at 29.
K. Lenaerts, ‘Some Reflections on the Separation of Powers in the EC’, (1991) 28 CMLR, at 13.
This point has to be clarified since the law will change considerably once the Treaty of Nice takes effect.
Under the Treaty of Amsterdam, it is not the Council but the governments of the member-states who
nominate and appoint the members of the Commission. When the Treaty of Nice takes effect, however,
it will be the European Council that nominates the President of the Commission and the Council that
finally appoints the whole Commission. See A. Hatje, ‘Die institutionalle Reform der Europäischen
Union’, (2001) Europarecht 153. As to the general institutional setting see K. Lenaerts, ibid. Also,
G. De Burca, ‘The institutional development of the EU’ in P. Craig and G. De Burca (eds), The Evolution of EU Law (Oxford University Press, 1999), at 55.
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of course different in many other respects, in this structure the EU resembles the US
Constitution where both Houses of Congress and the President are also based on different sources, elected by individual procedures and personally separated institutions.27
One question however, remains: why does the EU work as a system of separated
institutions sharing powers? It is here especially that we must look to the Council, which
is the institutional core of the specific federal system just described. It is at the same
time the institution which exemplifies as well as ensures that the EU’s institutions are
on one side, separately elected and composed, but on the other side, have to cooperate
constantly. As to the first point, it has a unique and separated procedure of election,
being composed of members of national governments. Nevertheless it makes the laws
of the Union. The Council has furthermore a strong influence on the appointment of
the Commission and thus impedes a unitary parliamentary system and a close fusion
between Commission and European Parliament. Hence it is the executive federalism in
the EU and its prime organ, the Council, which entails this system of separated institutions sharing powers. In other words, it is the Council which pre-empts a regular parliamentary setting in the EU, and creates instead a system of separated institutions
sharing powers.
III Ideal Types of Parliaments as Comparative Matrixes for the Analysis of
the European Parliament
Against this backdrop we can now turn to the European Parliament and address
the question of what position legislatures or parliaments28 have in such systems. The
example of the US Constitution suggests that this structure has an immense influence
on the inter-institutional position as well as the powers and working-methods of Congress. Especially in comparison to legislatures in unitary parliamentary systems where
the majority party in parliament forms the government, Congress as parliament in a
separated setting has genuinely different features.29 If so, what effect does this separate
setting have on the European Parliament and how can it be used for its analysis?30
Answering this question will be the exercise in the rest of this paper. This exercise
will be instructed by a broader typology of parliaments, which will now be developed.
Instigated by the comparison with the US Congress and instructed by comparative
27
28
29
30
C.f. Art. I Sec. 2–4, II Sec. 1, Par. 2 US Constitution, also see C. O. Jones, ‘The Constitutional Balance’
in C. O. Jones, Separate but Equal Branches (Chatham House, 1995), at 3. See also L. Fisher, The Politics of Shared Powers (A&M University Press, 1998). See generally G. Sartori, Comparative Constitutional
Engineering 2nd edn (New York University Press, 1997), at 84.
As to the terminology: I will use the term ‘parliaments’ although I am aware that the American term and
the term used in most of the (American) comparative literature would be ‘legislature’. The term parliament, though, is more rooted in the European language and chosen by the European Parliament as its
name.
For a systematic comparison of both types see W. Steffani, ‘Amerikanischer Kongreß und Deutscher
Bundestag’ in W. Steffani, Parlamentarische und präsidentielle Demokratie (Westdeutscher Verlag, 1979),
at 327–345. For a comprehensive comparison between the House and the Congress on a more descriptive level see K. Bradshaw and D. Pring, Parliament and Congress (Austin University Press, 1972).
Equally important is the question of what this structure implies for the role of Member State parliaments. I cannot adequately address this question here. However, the structure of executive federalism
fundamentally impedes the chances of Member State parliaments providing sufficient parliamentary
legitimacy, and leaves them in a serious dilemma between parliamentary control and efficiency. See
P. Dann, op. cit. note 9 supra, at 14–18.
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literature on legislatures, two contrasting ideal types of parliaments can be described
which shall serve as the comparative matrix for the European Parliament. These two
types of parliaments shall be named debating parliament and working parliament.31
The debating parliament is what in continental Europe is often perceived as the ideal
parliament: it is centred around its plenary, which serves as the forum of the nation
and draws its importance from mirroring different opinions in society within the parliament. This type is mostly found in parliamentary systems where the majority party
in parliament forms the government, leading to, in the words of Walter Bagehot, a
fusion of majority party and government. The political opposition uses the plenary to
attack governmental measures as well as to lay out its own proposals. In short: debate
is the centre of parliamentary life. The British House of Commons is the pre-eminent
example.32
The working parliament, on the other hand, receives its character and power from
being fairly separated from the government and from operating as a counter-weight to
it. Not the fusion of majority party and government, but the institutional combat
between legislature and executive characterises the system and thereby the legislature.
Moreover, an incompatibility rule which forbids members of the executive from sitting
in the legislature, prevents public debates between government and opposition on the
floor. It is more the strong and specialised committees and less the floor which functions as the main locus in working parliaments. These committees acquire expertise and
power to control the bureaucracy, and heavily shape lawmaking. In sum: working committees are at the heart of parliamentary life. The US Congress is the classic example
of this type of parliament.33
These two types differ remarkably in their use of powers and their organisation. They
form thus a multi-facetted background to compare the European Parliament with. It
should however be stressed that these two types are, of course, models, primarily heuristic devices to analyse the European Parliament and to highlight certain features. Even
the House of Commons and the US Congress which were quoted as examples, are naturally not merely clear cut models, but are captured only in a central characteristic.
At first glance, it would seem that there are many similarities between the European
Parliament and the working parliament model. Nevertheless, it should be mentioned
that certain of its features are quite original to the European Parliament. These features justify the consideration of a third type, which can be seen as a sub-category
of the working parliament. This type shall be more precisely named a ‘controlling
31
32
33
These specific notions are based on the studies of Max Weber and Winfried Steffani who call them ‘Redeparlament’ and ‘Arbeitsparlament’ (M. Weber, ‘Parlament und Regierung im neugeordneten Deutschland’
in M. Weber, Gesammelte politische Schriften 3rd edn (Mohr, 1971), at 350; W. Steffani, op. cit. note 30
supra, at. 333). Despite their German origins, both types are (with different labels) recurrent models in
most of the comparative literature on legislatures. See for example the distinction between ‘active’ and
‘reactive’ legislatures in the comprehensive study by Michael L. Mezey (Comparative Legislatures (Duke
University Press, 1979), table 2.1., at p. 36) or especially Nelson Polsby’s ‘transformative’ and ‘arena’ legislatures in his text ‘Legislatures’ in Handbook of Political Science (Addison-Wesley, 1975). See also E.
Hübner and H. Oberreuter, Parlament und Regierung (Westdeutscher Verlag, 1977). The two types have
also surfaced in the literature on European integration (see C. Lord, Democracy in the European Union
(Sheffield Academic Press, 1998), at 65; R. Corbett et al., Parliament, at 7) but have never been systematically elaborated to analyse the European Parliament.
As classic account of this model: W. Bagehot, The English Constitution (Sussex Academic Press, 1997
(1865)).
As classic text here: W. Wilson, Congressional Government (Meridian Books Cloeveland, 1956 (1885)).
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parliament’. As such, it employs basically the same instruments as a working parliament (such as the US Congress), but its powers are generally more of a negative,
and controlling nature than an autonomously creating one. In this respect the term
‘controlling parliament’ is more appropriate.
IV Form and Functions of the European Parliament as
Controlling Parliament
Having outlined the framework, it is now time to analyse the European Parliament
directly. For this purpose, the European Parliament will be examined along its different powers or functions. Four of these will be discussed here—the elective, the oversight, the lawmaking, and the representation function—and compared with the way the
two parliamentary models use them.
A
The European Parliament and its Elective Function
The elective function highlights a first characteristic difference between the two types
of parliaments described above. The working parliament is not involved in the election
of the executive branch; both branches are keenly separated in their way of election
and their personnel. On the other hand, it is the pivotal right of a debating parliament
in a unitary system to have the power to elect as well as to censure the government.
Moreover, its majority faction is personally merged with the government. The appointment powers of US Congress and the House of Commons easily demonstrate this
point.
Yet, the elective function does not follow a simple yes-or-no pattern, but has a
gradual shape. Three aspects contribute to this function. First and most basically, there
is the right to dismiss the government. Second, there is the power of parliament to elect
the government.34 Finally, the grade of personal fusion between majority party in parliament and government marks a third difference between both types.
a)
Towards a Parliamentary System?
Looking now at the elective function of the European Parliament along these aspects,
it might seem at first sight that the European Parliament is developing into a debating
parliament and the EU into a parliamentary system. There is, first of all, the right to
censure the Commission that the European Parliament possessed since the inception
of the Communities (Article 120 EC, formerly Article 144 EC). Although often considered a practically useless ‘nuclear bomb’, in January 1999 the European Parliament
actually used this right successfully for the first time when it caused the Santer Commission to resign.35 Even more importantly, the European Parliament greatly increased
34
35
This power can be a merely political right. In some parliamentary systems, where the government is not
formally elected by parliament but appointed by the Head of State (like in the UK), it is nevertheless
politically unquestionable that the leader of the majority faction will be the new leader of the government (c.f. L. Helms, ‘Executive Leadership in Parliamentary systems: The British Prime Minister and the
German Chancellor compared’, (1996) 5 German Politics, 101).
It was formally not a vote of the European Parliament which put the Commission out of office but a
Group des Sages which recommended it, a public outcry which demanded it and finally, the deliberate
step of the Commission itself. Nevertheless, it was the Parliament that was the driving force behind the
whole development (see the precise account given by A. Ott, ‘Die Kontrollfunktion des Europäischen
Parlaments gegenüber der Kommission’, (1999) 3 Zeitschrift für europäische Studien 238).
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its influence on the appointment of the European executive branch, if one regards the
Commission as at least a kind of executive of the EU (Article 214 TEC).36 During all
three of the last treaty revisions, the European Parliament’s powers to approve or veto
a new Commission or its president have been considerably enhanced.
Thus, looking at the first two standards it has been argued that soon the European
Parliament will be the decisive actor in appointing the Commission and is moving
steadily into a parliamentary direction,37 even though it might be decorated with some
specific, delicately supranational features.38
b)
The Structure of Executive Federalism as Impediment
against Parliamentarisation
Nevertheless, this paper argues the opposite. It contends that the parliamentarisation
of the EU is the most unlikely development, because the institutional structure, rooted
mainly in executive federalism, substantially impedes such a development.39 Instead,
the position and prospects of the European Parliament are much better characterised
by its primarily negative competence to check or chase away a Commission. Three
arguments support this position:
(1) Quite obviously the position of the Council of Ministers and the European
Council impedes the parliamentarisation of the EU. This, first, because of their role in
appointing the Commission40 and, secondly, seeing the Councils as part of the dual
executive of the EU.41 The Council as a whole is generally beyond the reach of the
European Parliament.42
The Council’s position and influence has been interpreted as based mainly on the
intergovernmental nature of the appointment of the Commission.43 Although this is
true, it fits at the same time quite naturally into the structure of executive federalism
where the Council is a central partner of the Commission in lawmaking as well as executive functions.
36
37
38
39
40
41
42
43
R. Corbett et al., Parliament, pp. 234; E. Noël, ‘New Institutional Balance’, in R. Dehousse (ed.), Europe
after Maastricht (Law Books in Europe, 1994), at 20–21; M. Westlake, ‘The European Parliament’s emerging powers of appointment’, (1998) 36 JCMS 431.
E. Noël, ‘Reflections on the Maastricht Treaty’, (1992) 27 Government and Opposition 2; M. Nentwich
and G. Falkner, ‘The treaty of Amsterdam: Towards an Institutional Balance, European Integration online
Papers (EIoP) Vol. 1 (1997), No. 15, p. 4; R. Dehousse, op. cit. note 2 supra, at 624–625.
See P. Magnette, op. cit. note 3 supra), at 292–310.
There are various lines of argument against a parliamentarisation of the EU. This paper, however, uses
a distinct approach, arguing from a specifically institutional perspective, mainly inferred from the structure of executive federalism. As to other argumentation see for example the interesting argument made
by Simon Hix, based on the European party logic (S. Hix, ‘Executive Selection in the European Union:
Does the Commission President Investiture Procedure Reduce the Democratic Deficit?’, European Integration online Papers (EIoP) Vol. 1 (1997) No. 21).
C.f. Art. 214 in the version of the Treaty of Nice.
K. Lenaerts, op. cit. note 26 supra, at 17–18.
The national parliaments are, of course, mainly responsible for this kind of parliamentary accountability of the Council. But, first of all, each national parliament elects and controls only one government,
thus the Council as whole is not accountable in the sense that it could be dismissed. And second, we have
just seen that the national parliaments do not fulfil this role practically, because European Affairs play
only a minor role in national politics (with the exception of the UK). The Council as a supranational
organ is therefore not dismissible by any parliament.
P. Magnette, op. cit. note 3 supra, at 297–298.
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(2) A second and less obvious argument against the parliamentarisation of the EU
derives from the way in which the European Parliament conducts the approval procedure of a new Commission. It would be the ‘natural’ behaviour in a debating parliament for the majority party (or coalition) to elect the government without further
discussion. In the European Parliament, instead, there is no majority which perceives
itself as a loyal parliamentarian base of the Commission. What is more, especially in
the hearings of the candidates that the European Parliament conducts before it
approves of a new Commission, it becomes apparent that the European Parliament
regards itself rather as a prickly and critical counter-weight than as a loyal supporter
of the Commission.44
Paul Magnette has interpreted this aspect as a technocratic (and therefore distinctly
European) part of the appointment procedure.45 Yet, it would be a new and quite
unconvincing argument to interpret the European Parliament as a technocratic institution of the EU. Instead, this behaviour fits perfectly well into the self-understanding
of parliament as an institution in the separated system of executive federalism. The
parliament here is not an ally of the government but a separate actor. It cannot
autonomously elect, and therefore tries to control the Commission. From this perspective, it is not surprising that the role model for the hearings in the European Parliament was the Senate of the US Congress.46 Here again, we find a system of separated
institutions in which the Senate uses its approval competency to critically check the
president’s nominees. Both the European Parliament and the Senate comply rather with
the logic of separated systems than of parliamentary systems.
(3) The final argument against a parliamentary system in the EU concerns the
fusion between European Parliament and Commission, or the European Parliament’s
role as a recruitment pool. There is little argument as to the empirical evidence: a fusion
between both institutions does not exist and even the role of former Members of the
European Parliaments (MEPs) in the Commission is rather minor.47 Instead, the Commission is composed of politicians who served in national political arenas, be it
governments, parliaments, or parties. This can be explained by the influence of intergovernmental bodies on the appointment process (European Council and Council of
Ministers) which, being composed of members of the national governments, proposes
national politicians.48
Yet, an additional and much simpler explanation has often been overlooked: there
is a formal incompatibility rule between a mandate in the European Parliament and a
seat in the Commission. Article 6 I, second indent of the Act concerning the election
of the representatives of the Assembly by direct universal suffrage formally prohibits
the appointment of MEPs to the Commission.49 Of course, historically this has a root
44
45
46
47
48
49
S. Hix and C. Lord, ‘The making of a president’, (1996) 31 Government and Opposition, at 62; A. Maurer,
‘Das Europäische Parlament und das Investiturverfahren der Kommission’, (1995) 18 Integration, at
88–97.
P. Magnette, op. cit. note 3 supra, at 298–299.
A. Maurer, What next for the European Parliament? (Federal Trust, 1999), at 50; as to the American procedure R. Davidson and W. Oleszek, Congress and its members 6th edn (Congressional Quarterly, 1998),
at 148.
R. Corbett et al., Parliament, p. 250; P. Magnette, op. cit. note 3 supra, at 298.
P. Magnette, op. cit. note 3 supra, at 297–298.
OJ L 1976, 278, at 5. This provision is backed by Article 213 II EC, which does not explicitly mentions
an incompatibility but prohibits that ‘members of the Commission engage in other paid activities’ and
is interpreted as incompatibility rule (Answer to parliamentary inquiry No. 2752/94 of MEP Hermann,
OJ 1994, C-88, at 38).
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in the technocratic origins of the Commission. But with the role of the European Parliament in the EU changing dramatically in the past twenty years, it seems to be better
explained today as fitting into the separate system, just as in the US system. Here, there
is a divide not between the political parliament and the technocratic Commission, but
between the legislature and the executive branch.
c) The Elective Function of a Controlling Parliament and the Problem
of Accountability
Rebutting the possibility of a parliamentarisation of the EU and now returning to the
question of which type of parliament the European Parliament represents, it seems
evident that the it does not fit into the category of a debating parliament. Hence it must
be a working parliament? Well, there are also certain aspects that distinguish it from a
classical working parliament, most of all its negative competence to veto or even
dismiss a Commission. From the perspective of comparative studies, this is a crucial
difference, changing the balance and dynamics of institutional relations. Therefore it is
consequent to argue in a third direction, conceptualising the European Parliament as
a distinct type, which shall be called here as a ‘controlling parliament’. As such it has
the crucial power to check a Commission, but cannot autonomously elect it. Thus, it
functions as a negative force.
Incidentally, this power makes perfect sense in the specific institutional and political
setting of the EU. First of all, possessing this negative competence might ensure at least
a basic standard of democratic accountability. More importantly from the perspective
of the overall system, an increased influence on the election of the Commission would
also require a stable party coalition in the European Parliament to carry this Commission. This is not only very difficult to achieve or maintain, but would endanger the
federal diversity of the party system in the European Parliament. Thus, the current
position of the European Parliament as controlling parliament might not only describe
it adequately, but also seems to fit normatively into the broader political system of the
EU.
However, this interpretation of the European Parliament’s elective powers should not
obscure a deep flaw in the elective system of executive federalism. This is the question
of accountability. It is one of the central principles of democratic government that the
people shall have a say in who is governing. Democratic government is self-government
or, as Abraham Lincoln put it, ‘government of the people’. But looking at the elective
function in the EU, this principle is obviously violated. Here, the executive, located in
the Commission and to some extent in the Council, is not elected by the European Parliament but appointed by the European Parliament and the Council together. The
Council, on the other side, is composed of national governments, thus elected separately by the respective national parliaments and their elections. In a nutshell: European elections do not result in a certain composition of the executive. There is no direct
and clear connection between the European citizen’s right to vote (on the European
and national level) and the governing personnel.50 Instead, every vote given is manifoldly counterbalanced and dispersed by other elections, at other times, and in other
places.51
But if a parliamentarisation is prevented by the structure of executive federalism, as
just argued, would then the direct election of the president of the Commission remedy
50
51
J. H. H. Weiler, ‘To be a European citizen’ in J. H. H. Weiler, op. cit. note 18 supra, at 350.
K. Neunreither, ‘Governance without Opposition’, (1998) 33 Government and Opposition 419.
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the problem? This can well be argued. Surely, the introduction of a direct election would
enhance the transparency of the system and strengthen a clear line of responsibility.52
Yet, the problem of accountability in the EU lies deeper. It is rooted in the federally
shaped institutional structure that necessarily demands cooperation between the federal
levels and different governments. Even a directly elected president of the Commission
would have to bargain and make compromises with the national governments in the
Council. It lies in the nature of executive federalism to entail this somewhat murky and
non-transparent situation. What is a gross violation of democratic principles on one
side, turns out to be the life insurance of the federal system on the other side.
The problem is best exemplified in Germany. There exists a full-fledged parliamentary
regime headed by a Chancellor who is elected and dismissible by parliament, and who
is often in his institutional strength even compared to the British Prime Minister.
Nonetheless, Germany is used to a permanent discussion and dissatisfaction about gridlock and the blockage of necessary reforms, caused by a federal system which is structurally identical to the European one. It was Ernst-Wolfgang Böckenförde who baptised
the awkward and murky situation an ‘Allparteienbundesstaat’ or all-party-federalism
which defies the principle of changing governments, and thus accountability.53
This comparative hint neither softens nor excuses the problem, of course. Accountability in executive federalism remains a sad topic. But the comparative note might
underline that these problems are due to the very basic structure of executive federalism. The EU will keep these problems, despite all institutional reform, unless it changes
the system of interwoven competencies as its fundament. The problem of accountability and the federal structure of the EU are too deeply intertwined.
The elective powers of the European Parliament, however, make the best of an
overall problematic institutional setting. It uses its approval powers to critically scan
the prospective commissioners, thereby contributing greatly to the public perception
and thus control of the Commission. And its right to censure is at least an emergency
break in the event that public distrust soars. The European Parliament as controlling
parliament thereby ensures at least a minimum of accountability.
B The European Parliament’s Oversight Function and its
Internal Organisation
Against this background, the oversight or control of the executive becomes an even
more important task of the European Parliament. The approaches towards the control
function are very different, however, in the two types of parliaments that we use for the
analysis of the European Parliament: the debating parliament scrutinises the government foremost in public debate, via question time and interrogation of the government
on the floor and in front of TV cameras. The working parliament does it more in detailed
control of government proposals, exercised by specialised committees, which question,
block, and amend.54 The place of action here is in the committees, not the plenary.
52
53
54
C. Lord, op. cit. note 32 supra, at 131.
E.-W. Böckenförde, op. cit. note 22 supra at 188; C. Moellers, ‘Der parlamentarische Bundesstaat’ in
Aulehner (ed.), Föderalismus – Auflösung oder Zukunft der Staatlichkeit? (Boorberg, 1997), at 81; as to
the relation between Bundestag and Bundesrat also K. von Beyme, The Legislator. German Parliament
as a centre of Political Decision-Making (Aldershot, 1998), at 95–102.
Exemplifying this K. Bradshaw and D. Pring, op. cit. note 30 supra, at 355; G. Löwenberg and
S. Patterson, Comparing Legislatures (University Press of America, 1979), at 148.
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As to the evaluation of both types, two aspects are especially central: first, the formal
existence of interrogative powers, their empirical use and thus the use of the plenary
as common battle ground for political discussions, and second, the committee structure of a parliament.
d)
Oversight via Public Debate? The Debating Parliament Approach and the
European Parliament
Looking at the first group of parameters and first from a formal standpoint, the European Parliament could easily qualify as a debating parliament. It has the right to interrogate the Commission, orally as well as in written form (Article 197 III EC, Articles
42, 44 Rules of Procedure of European Parliament).55 It can set question times (Article
43 RoP-EP), in which the Commission has to react on the floor, or it can conduct urgent
debates to give the political groups an opportunity to lay out their current positions
(Article 50 RoP-EP). The European Parliament also has the right to discuss reports
which are delivered by the Commission (Article 200 EC).56 All these are instruments to
be used in plenary. Thus, from a formal standpoint the European Parliament could
easily be categorised a debating parliament.
But how are these rights actually used? The interrogation powers are undoubtedly
popular and frequently employed.57 Yet, on a closer look, it turns out that their usage
has relatively shrunk, especially since the European Parliament has gained legislative
powers in the 1990s.58 Also, the vast majority of the questions are written questions,59
hence serving more as a source of information for the MEPs, and less to instigate public
discussion in the plenary. Even the Question Times, which form the core of parliamentary life in the British parliament as a classical debating parliament,60 are often less
sharp and more tedious than to be expected.61
A telling example of the European Parliament’s fate as debating parliament is the
story of the presentation of the annual general report of the Commission. Planned so
as to initiate a major annual policy debate (similar to national budgetary debates),
Article 200 EC requires the whole European Parliament to discuss this annual report
of the Commission. Yet, this was the practice only until the mid-1970s. Then, in a
silent shift, the European Parliament decided to refer the discussion directly to the
55
56
57
58
59
60
61
In the following text abbreviated as RoP-EP. See R. Corbett et al., Parliament, at 248; I. Beckedorf, Das
Untersuchungsrecht des Europäischen Parlaments (Duncker & Humblot, 1995), at 126.
The Commission faces a long list of report obligations, c.f. Bieber, Article 43, Par. 7 in H. von der
Groeben, J. Thiesing and C.D. Ehlermann (eds), Kommentar zum EG-/EU-Vertrag, Vol. 4, 5th edn
(Nomos, 1997).
In the fourth legislature (1994–1999), the Commission had to answer not less than 21,096 parliamentary
questions (Corbett et al., Parliament, at 250). For regular updates on these numbers see the annual reports
of the Commission. For a colourful account see L. Cohen, ‘The Development of the Question time in
the EP’, (1979) 16 CMLR at 46.
A. Maurer, op. cit. note 47 supra, at 54.
The ratio is 1:4 between oral questions (including questions during question time) and written questions,
see Corbett et al., Parliament, at 250; also European Parliament report, Co-Governing after Maastricht:
the EP’s institutional performance 1994–1999, PE, p. 49 / graph 21 (DG IV studies, POLI 104).
It comes with little surprise therefore to learn that the instrument of question times was introduced after
the first enlargement in 1972 which brought countries into the Community with great parliamentary traditions (c.f. R. Bieber, Art. 140, par. 9 in Groeben et al. (eds), op. cit. note 57 supra); as to the English
tradition A. Franklin and P. Norton (eds), Parliamentary Questions (Oxford University Press, 1993).
R. Corbett et al., Parliament, at 249.
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Committees to make it more effective.62 Not that there was no formal chance to debate;
rather it became obvious that the discussion of the report was more fruitful when done
in the more specialised committees than on the floor.63
The conclusion so far is therefore evident: although the European Parliament has
the formal power to scrutinise via public questions and debate, these powers do not
add up to be the really living part of European Parliament procedures. This result is
emphasised by a brief look at the overall time scheduled for plenary discussions in the
European Parliament. This works normally along a four-week rhythm, out of which
one is reserved for the parliamentarians’ work in their constituencies, two for the Committees to convene, and only one is actually spent in the plenary.64 Comparing this ratio
to a debating parliament reveals once more, how little the European Parliament fits
into this model.
e) Oversight via Organisation: Committees and the Working Parliament
Approach in the European Parliament
Looking at the other type of oversight, the working parliament approach is heavily
based on certain organisational pre-conditions, namely, an effective committee structure.65 This is again exemplified in the US Congress, as a legislature whose special
strength is mainly based on highly powerful committees.66 On the other hand, in a classical debating parliament such as the House of Commons, committees play a minor
role.67 How does the European Parliament fare in this respect?
In a recent article, the committees of the European Parliament were characterised as
the ‘backbones keeping the institution upright’.68 I would add that they are also the
European Parliament’s brain and voice. Or to put it less physiologically: the committees are of paramount importance for the work of the European Parliament in an
organisational as well as procedural sense.69 While space constraints do not permit a
62
63
64
65
66
67
68
69
Art 45 RoP EP. C.f. R. Bieber, Art 143, para 4 in H. von der Groeben et al. (eds), op. cit. note 57 supra).
Another perspective is offered by R. Bieber, Art 143, para 5, in: H. von der Groeben et al. (eds), op. cit.
note 57 supra).
R. Corbett et al., Parliament, at 32. It is also interesting that the Committees do not convene at the seat
of the European Parliament in Strassbourg but in Bruxelles where the other institutions have their seats.
For an in-depth analysis of committee structures in several parliaments, see K. Strom, ‘Parliamentary
Committees in European Democracies’, in L. Longley and R. Davidson (eds), The new role of parliamentary committees (Frank Cass, 1998), at 21–59.
See i description (‘Congress in session is Congress on public exhibition, whilst Congress in its committee rooms is Congress at work’, Wilson, op. cit. note 34 supra, at 79). For a comprehensive study of the
committee system today in the US Congress see C. Deering and S. Smith, Committees in Congress (Congressional Quarterly, 3rd edn 1997). See also M. Shapiro, op. cit. note 7 supra, at 187–188.
Traditionally, the House of Commons had an extremely weak committee system. This was reformed in
1979. For a concise characterisation of this reform see Philip Norton: ‘In comparative perspective, the
changes are modest. In historical perspective, they are dramatic’ (P. Norton, ‘Nascent Institutionalism:
Committees in the British Parliament’ in L. Longley and R. Davidson (eds), op. cit. note 66 supra), at
146). Generally to the committees in the House of Commons, G. Drewry (ed), The new select committees 2nd edn (Oxford University Press, 1989).
C. Neuhold, ‘The ‘legislative backbone’ keeping the Institution upright? The Role of European Parliament Committees in the EU Policy-Making Process’, EIoP 5 (2001), No. 10.
See R. Corbett et al., Parliament, at 105–129; N. Nugent, op. cit. note 21 supra, at 200; S. Bowler and
D. Farrel, ‘The Organizing of the European Parliament: Committees, Specialization and Co-ordination’,
(1995) 25 British Journal of Political Science 226; K. Collins, C. Burn and A. Warleigh, ‘Policy Entrepreneurs: The Role of European Parliament Committees in the Making of EU Policy’, (1998) 19 Statute
Law Review 1–11.
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precise description of their role, two aspects shall highlight their central position. First,
their role in acquiring information, discussing and analysing it, and finally formulating
the political position of the European Parliament is absolutely central. The committees have the right to interrogate the Commission (Article 164 RoP-EP) and to hold
hearings with special experts (Article 166 II RoP EP). Building on these instruments,
the committees can (and do) acquire specific expertise in their fields.70 On this basis, it
is their task to file reports for the plenary, thereby formulating and pre-determining
most of the final outcomes. These powers are a sword with two sharp sides: they not
only facilitate the European Parliament’s role in legislative procedures,71 but also contribute to the European Parliaments’s ability to competently scrutinise the executive,
especially when it comes to implementation.72
There is a second aspect which allows the committees to play such a pivotal part in
the institution: their internal structure. They are not only small, but also specialised
and oriented in their scope towards the division of subject matters in the Commission.
Of salient importance is their special leadership structure. This consists of a chairman
and a rapporteur.73 The latter is responsible for presenting a matter to the committee,
drafting the report for the committee and arguing it in plenary and with other institutions. Therefore a highly influential figure, he is chosen in a complicated and hotly
contested procedure.74 Besides, this position creates clear responsibilities, giving the
committee a distinct voice to communicate to the inside (between different committees
and party groups) as well as to the outside (to other institutions). It renders the committee especially suited to negotiate with other institutions through an expert representative. It also contributes to the European Parliament’s chances to fit into the
consensus system of the EU, where different institutions have to constantly negotiate.75
There is one more parameter to qualify a parliament as working or debating type
and that is the size and organisation of its staff: whereas the working parliament can
acquire its expertise and level of scrupulous scrutiny of the executive only because of
the support of an extensive staff, the debating parliament traditionally has very little of
it. Its approach is based more on the rhetorical skill of the single parliamentarian to
surprise the government and disclose its weakness in debate than on counter-weighing
governmental bureaucracies.
70
71
72
73
74
75
See the inside report by K. Collins et al., op. cit. note 70 supra, at 9–10; and especially S. Bowler and
D. Farrel, op. cit. note 70 supra, at 226–235 (measuring the time spent in one committee and the acquired
expertise, and concluding that ‘the EP has developed specialisations which typically enable legislatures
to challenge executive power’, at 235).
See below, Part IV B 3 b.
Another important facet of the European Parliament’s scrutiny system are the Committees of Inquiry
(Article 193 EC) that can be set up for special purposes and for a limited time, see M. Shackleton, ‘The
European Parliament’s New Committees of Inquiry’, (1998) 36 JCM St., at 115–130; I. Beckedorf
(op. cit. note 56 supra); D. Chambers, ‘The BSE Crisis and the European Parliament’ in C. Joerges and
E. Vos (eds), EU Committees (Oxford University Press, 1999), at 95–106.
Art. 157 RoP EP. See Nugent, op. cit. note 21 supra, at 202–203; R. Corbett et al., Parliament, at 117–120;
S. Bowler and D. Farrel, op. cit. note 70 supra, at 242–243; C. Neuhold, op. cit. note 69 supra, at 6.
C.f. Art. 159 RoP EP. For the practice of this procedure C. Neuhold, op. cit. note 69 supra, at 7;
R. Corbett et al., Parliament, at 117–118.
Another important aspect explaining their role is that committees in the European Parliament convene
and negotiate in public, Art. 171 III RoP EP. This and their often-used right to organise hearings with
the specialised public enhance their role as ‘windows of the parliament’ (see C. Neuhold, op. cit. note 69
supra, at 8–9; R. Corbett et al., Parliament, at 272–273).
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Looking at the European Parliament, the staff is yet another factor which underlines its basic nature as a working parliament. Compared to the US Congress of course,
it looks petty. But compared to all national parliaments in Europe, it has one of the
largest staffs.76 The EP staff is organised on different levels: on an individual level, every
MEP has at least one full time assistant which she can freely employ. On a party level,
every party group in the EP is ascribed a number of assistants according to their size
and the number of languages spoken. Finally, there is the General Secretariat of the
European Parliament in Luxembourg which provides further assistance for the parliamentarians. Altogether, the staff of the European Parliament totals 4,100 persons.77
In sum: the European Parliament is also in respect to its oversight function clearly
a working parliament with well-structured committees having prominent rights, providing an infrastructure to seriously scrutinize the executive, and with the number and
organisation of the staff displaying once again the basic character of the European
Parliament as a working parliament.78
f)
A Peculiar Question: Comitology and the European Parliament
A special object of the European Parliament’s scrutiny is the comitology area. Without
going into any detail analysing this especially peculiar (and especially European) aspect
of multilevel governance,79 three brief remarks shall be made, looking at the comitology issue through the federal lens.80
First, through this lens the comitology system comes with a certain necessity. The
interwoven competencies require close executive cooperation, and especially in the area
of implementation, the intensive exchange between national and European civil servants seems to even serve a greater good.81 Thus, not touching the structure of competencies also means accepting the need for an extensive form of cooperation between
different levels of government and mainly bureaucratic actors.
However, second, this cosy system comes with a serious downside: the parliament’s
role in that complex world of comitology has traditionally been seen as bleak and as
a major source of annoyance for the European Parliament.82 The situation has
76
77
78
79
80
81
82
See M. Shapiro, op. cit. note 7 supra, at 199–207; also R. Corbett et al., Parliament, 166–176. In a broader
comparative perspective see G. Löwenberg and S. Patterson, op. cit. note 55 supra, at 159–164;
K. Bradshaw and D. Pring, op. cit. note 30 supra, at 244–247.
1,200 staff members are actually translators. Nevertheless, there are even more sources: the European
Parliament has adopted a network concept to use external research institutions for European matters
(the so-called STOA, Scientific and Technical Options Assessment, see R. Corbett et al., Parliament, at
252). Moreover, there is the legal service of the European Parliament that provides valuable support not
only in judicial proceedings in front of the Court of Justice but also legal expertise in the lawmaking
activities of the parliament.
One other aspect of the control powers of the European Parliament has remained unmentioned so far:
European Parliament’s powers to scrutinise the Council. Actually, the European Parliament has nearly
equivalent powers to interrogate and scrutinise the Council as it has towards the Commission
(c.f. R. Corbett et al., Parliament, at 247; I. Beckedorf, op. cit. note 56 supra, at 157; J. Lodge, The European Parliament in S. S. Andersen and K. A. Eliassen (eds), op. cit. note 2 supra, at 198).
See E. Vos, ‘The rise of Committees’, (1997) 3 ELJ 210–229 and as overview the articles in the book by
C. Joerges and E. Vos (eds), EU Committees (Oxford University Press, 1999).
See more precisely P. Dann, op. cit. note 9 supra, at 33.
See esp. C. Joerges and J. Neyer, ‘From intergovernmental bargaining to Deliberative Political Processes:
The Constitutionalization of Comitology’, (1997) 3 ELJ 273–291.
See K. Bradley, ‘The European Parliament and Comitology: On the Road to Nowhere?’, (1997) 3 ELJ
230–254; S. Hix, ‘Parliamentary oversight of executive power: what role for the EP in comitology’ in
Christiansen (ed.), Europe in change (Manchester University Press, 2000), at 62–78.
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considerably changed (and from the European Parliament’s point of view, improved)
with the Comitology decision taken by the Council in June 1999, introducing formal
rights of the European Parliament to be informed about the committee proceedings,
including agendas, draft measures, the results of voting records, and the participants
(Article 7 III of the Decision), and giving it a right to review certain implementing measures proposed by the Commission (Article 8).83 Nevertheless, there are many flaws in
the new regime, and considering especially the resources of the European Parliament
in terms of staff and time shows that there are obvious limits to parliament’s chances
of effectively scrutinising what is going on in the committees.
This leads to a last remark. If the European Parliament aims to play an increased
role in comitology scrutiny, it is not enough to press for more legally ensured rights—
it is necessary to strengthen its internal structure and staff. The role model in this
respect can only be a working parliament, since the means of scrutiny of a debating
parliament would not really help.
B The European Parliament and its Law-Making Function
The law-making function shows on yet another level how differently both types of parliaments approach their functions: debating parliaments tend to be rubber-stamp parliaments. They discuss legislative proposals, but since its majority is loyal and closely
linked to the government, it does not change the bills which stem mostly from the government’s own offices. Working parliaments, on the other hand, are prickly partners.
They are not so much controlled by the government (or party discipline) but vigilantly
scrutinise and amend what comes from them, especially in their committees. Law
making in these legislatures is a long, often cumbersome process, very much based on
bargaining and compromises. Gridlock is as common a phenomenon as is the softening of slightly radical bill proposals. ‘So while in Britain the business of legislation is
largely processional and predictable, in the US it is creative and emergent: until a bill
has been molded and shaped by a committee, its nature will not be known’.84
The evaluation of these two types dwells partly on parameters which were already
described above: the question of how closely the ‘government’ is linked to and supported by a parliamentary majority as well as the internal organisation of the parliament, i.e. its committee structure and staff organisation. Also relevant is the extent to
which bicameralism shapes the law-making procedure.85 The more two chambers have
to cooperate before a bill is enacted, the higher are the chances that a bill is amended
or torn in pieces.
The analysis of the law-making function will concentrate now on the European Parliament’s role in secondary legislation, or policy-making decisions. Its role in what has
been called the ‘history-making’ decisions of the EU, namely treaty revisions, falls out
of the scope of this paper.86 This confinement to the secondary legislation grows not
83
84
85
86
Council Decision 99/468/EC, OJ 1999, L 184/23. Reflecting on this decision see K. Lenaerts and
A. Verhoeven, ‘Towards a legal framework for executive rulemaking?’ (2000) 37 CMLR 645; C. Neuhold,
op. cit. note 69 supra, at 14–18; also R. Corbett et al., Parliament, at 255–261. See also the Court of First
Instance, T-188/97, Rothmans International BV v Commission (Judgement of July 19, 1999).
K. Bradshaw and D. Pring, op. cit. note 30 supra, at 293.
A. Lijphart, Patterns of Democracy (Yale University Press, 1999), 203–211, at 45.
Such as Art. 48, 49 TEU, Art. 269 EC. As to these notions and categories, see M. Shackleton, op. cit.
note 3 supra, at 103.
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only out of the fact that the European Parliament’s role in these latter procedures is
rather minor or at least informal.87 It is also based on the fact that the two models of
working and debating parliaments only cover parliaments in their regular way of law
making, not in the rather exceptional instances of constitution making or amending
procedures. Thus, only the concentration on the European Parliament’s policy-making
processes can reflect its character.88
g)
Coalition Building between the Institutions
It is an often-told story how the European Parliament acquired serious influence on
rule-making in the Communities only step-by-step.89 It was not until the Single European Act in 1987 and especially the Maastricht Treaty that it actually attained a relevant and formally recognised saying in different law-making procedures. And only after
Amsterdam can it be called an equal partner of the Council in the main law-making
procedure, the co-decision procedure (Art 251 EC).90 What characterises law making
in the EU generally, and the European Parliament’s role in respect to the just described
types of parliamentary involvement?91
Law making in the EU is first of all characterised by an overriding need for consensus-building between the involved actors. This goes back first to the question of link
between the ‘government’ and a majority in parliament. It might be a special characteristic of the EU system that legislation has to be initiated by the Commission. The
Commission therefore has (at least formally) a strong position in putting forward its
policy-proposals.92 But at the same time it has no steady parliamentary basis.93 The
87
88
89
90
91
92
93
See as to the procedure and the involvement of the European Parliament R. Corbett et al., Parliament,
at 295; M. Westlake, A Modern Guide to the European Parliament (Pinter, 1994), 56, 217.
To briefly hint to the changes occurring in the area of parliamentary involvement in treaty reforms: The
Conventions first on drafting the Human Rights Charter and now on the overall treaty reform seem to
change the picture fundamentally, see G. De Burca, ‘The drafting of the European Charta of fundamental rights’, (2000) 26 ELR 126; W. Dix, ‘Grundrechtecharta und Konvent’, (2001) 24 Integration 34.
See also the website of the European Convention, <http://european-convention.eu.int>.
See J. Pinder (ed.), Foundations of Democracy in the European Union (St. Martin’s Press, 1999); B. Suski,
Das Europäische Parlament (Duncker & Humblodt, 1996).
As to the changes after the treaties of Amsterdam and Nice, see A. Dashwood, European Law Review
2001, pp. 215; A. Maurer, Entscheidungseffizienz und Handlungsfähigkeit nach Nizza, (2001) 24 Integration 133–145. For a brief overview of the current legislative procedures see K. Lenaerts and P. Van
Nuffel, op. cit. note 11 supra, at 442–454; for an empirical and conceptual assessment, see P. Craig,
‘Democracy and rulemaking within the EC’, in P. Craig and C. Harlow (eds), Lawmaking, at 33.
E. Crombez, ‘Codecision: Towards a Bicameral European Union’, (2000) European Union Studies,
363–368.
Stepping back a little, it could be asked whether it is correct to regard the co-decision procedure as the
normal law-making procedure, since there are various others, in which the parliament still has very little
influence. Nevertheless, the co-decision has risen to be not the only one but the standard procedure in a
quantitative as well as qualitative perspective (see M. Shackleton, op. cit. note 3 supra, at 104; R. Corbett
et al., Parliament, at 191). Furthermore, it can be argued that the future will most probably bring a further
broadening of this procedure’s scope. Therefore it seems vindicated to use it here as the standard procedure for further analysis.
C.f. Art. 250 par. 1, 251 par. 2, 252 a EC. It is, of course, true that it is to a great extent the Council
which instigates legislation. The formal privilege of the commission might therefore be just a facade
(G. Edwards and D. Spence, ‘The Commission in Perspective’, in G. Edwards and D. Spence (eds), The
European Commission 2nd edn (Cartermill, 1997), at 9). See also M. Westlake, The Commission and the
Parliament: Partners and Rivals in the European Policy-Making Process (Butterworths, 1994), at 19–21.
R. Dehousse, op. cit. note 8 supra, at 126; S. Hix and C. Lord, Political Parties in the European Union
(Macmillon, 1997), at 178.
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Commission is composed and regarded as a politically (and nationally) balanced institution. Hence there is no party coalition in the European Parliament which would
support the Commission and loyally carry its legislative programme through. Instead,
a new supporting coalition has to be built up for every bill. The first pre-condition for
smooth government-led law making in a debating parliament is therefore missing.
The coalition now has to involve the members-states in the Council as well as the
party groups in the European Parliament. The procedure of Article 251 EC is based
on a strictly bicameral approach, as the notion ‘co-decision’ already suggests. If the initiative is a privilege of the Commission, it is European Parliament and Council which
actually decide upon the legislation.94 Through two readings in European Parliament
and Council, and possibly even a conciliation committee in the end, law making is a
rather complicated, sometimes cumbersome, and often long bargaining process.95 Its
participants are hence European Parliament and Council, who finally decide, but also
the Commission which acts as a broker between both. It is a triangular game. The whole
process is facilitated and actually characterised by a wide range of informal meetings
between the institutions, dialogues, or trialogues, using package deals and other tactics
to actually broker compromises.96 Thus blocking, amending, or checking are normal
tactics. Law making in the EU generally can therefore be described as a highly consensual process.97
h)
Consensus-Building within the European Parliament
In this environment it seems as if the European Parliament has to be a working parliament to be effective at all—and it is. Moreover, it is actually especially well-equipped
to fit into this setting, because it is in itself a consensual system.98 There are first of all
its committees, which play a highly important role. These small, specialised fora with
their specific leadership structure serve remarkably well for negotiations between the
different party groups as well as with the other institutions,99 Commission, and
Council.100 Rapporteurs and chairmen are common partners in the inter-institutional
negotiations and transmitter into the parliamentary world. Finally, the European
94
95
96
97
98
99
100
As to this procedure generally see P. Craig and De Burca, EU Law 2nd edn (Oxford University Press,
1998), at 135–137; K. Lenaerts and P. Van Nuffel, op. cit. note 11 supra, at par. 11–026.
As to the conciliation committees, see E. Foster, ‘The New Conciliation Committee under Article 189 b’,
(1994 19 ELR pp. 185–194; also R. Corbett et al., Parliament, at 196–200.
J. Garman and L. Hilditch, ‘Behind the scenes: an examination of the importance of the informal
processes at work in conciliation’, (1998) 5 JEPP, 271–284; A. Maurer, op. cit. note 47 supra, at 37;
R. Corbett et al., Parliament, 201–203. Extensively H. Farrell and A. Héritier, ‘Formal and Informal Institutions under Codecision: Continuous Constitution Building in Europe’, EIoP Vol. 6 (2002), No 3, at 7.
Sophie Boyron compared this process even to a mediation process, where the Commission acts as mediator between European Parliament and Council as opposed parties (S. Boyron, ‘The Co-decision procedure: Rethinking the constitutional fundamentals’, in P. Craig and C. Harlow (eds), Lawmaking), at
147–168).
See also H. Farrel and A. Heritier, op. cit. note 97 supra, at 7.
The Commission is a regular participant of European Parliament committee sessions, presenting and
defending its proposals. Also the Council (represented by the minister of the incumbent presidency) is
more and more often to be seen in these meetings to pave the way for later agreements. This position has
been legalised in Art. 66 I, 76 II, V RoP EP. See C. Neuhold, op. cit. note 69 supra, at 10; Collins et al.,
op. cit. note 70 supra, at 6.
See supra, Part IV B 2 c.
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Parliament in general has a leadership structure which provides it with a competent
system to act in a consensual setting.101
Another points adds to the observation that the European Parliament is itself a dominantly consensual actor: the party structure in the European Parliament is especially
diverse. At the moment, there are eight party groups, and even the two biggest together
hardly form an absolute majority.102 To reach an agreement in this diverse system
already requires the art of compromise. What is more, the majority rules in the European Parliament set particularly high standards for reaching agreement (Article 198,
251 II b, c C). Both aspects already force the European Parliament to develop negotiating and compromise techniques for its interior arrangements, allowing them to also
thrive in the broader inter-institutional process.103
It is this diverse and thus consensual character of the European Parliament itself
that explains why a parliamentary and majoritarian logic never conflicts with the
federal and consensual structure of the institutional process in the EU. From this perspective, the political deficit of the European Parliament, as Renaud Dehousse has
called it,104 turns out to be the efficient secret of the decision-making procedures in the
institutional setting of the EU.
i) Law Making in a Controlling Parliament: Policy Shaping, not
Policy Making
Assessing the character of the European Parliament with regard to the two types of
parliaments and their approaches towards law making, we find the European Parliament again on the side of the working parliament. We discern a prickly partner rather
than a smooth supporting ally of the government. The European Parliament is part of
and actor in a complex consensus-building system, not the rubber-stamp block of one
directing institution. Yet, for two reasons, the European Parliament can again be more
specifically characterised as a controlling parliament. First, the co-decision procedure
applies only to a limited number of policy areas.105 There are thus major policy fields
(like agriculture, taxes, or trade) that are not covered with the effect that the European
Parliament’s influence here is much weaker, shaping the European Parliament even
more as a reactive legislature, checking instead of mapping and autonomously policy
making.106
Second, as the European Parliament has no power to initiate legislation, its influence
is principally of an amending or blocking, not an initiating nature.107 This does not,
however, qualify it as a weak or incomplete parliament. In ‘normal’ parliamentary
systems today, it is nearly exclusively the government that introduces bills. Compared
to that, the European Parliament has developed quite an active agenda-setting behaviour. Nonetheless, its general position is less that of a policy-making legislature like US
Congress. It could rather be called a policy-shaping legislature.
101
102
103
104
105
106
107
The President, Vice-Presidents and the Conference of Presidents R. Corbett et al., Parliament, at 94–102.
S. Hix and C. Lord, op. cit. note 94 supra, at 77, 156 (table 6.7).
R. Corbett et al., Parliament, at 152.
R. Dehousse, op. cit. note 8 supra, at 124.
But see note 92 supra.
In agricultural questions, for example, the European Parliament is only consulted but has no decisive
powers, Art. 37 II EC.
As to its right to request that the Commission submits a proposal, Art. 192 EC and its rare use, see
R. Corbett et al., Parliament, at 209–210; see also M. Westlake, ‘The Commission and the Parliament’,
in G. Edwards and D. Spence (eds), op. cit. note 93 supra, at 244–245.
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Added to the negative power of the European Parliament in the elective function,
we therefore find a second central argument to characterise the European Parliament
as a controlling parliament and thus a subcategory of a working parliament, that is,
its restrained legislative powers.
B Representation in the European Parliament: Misunderstandings and Flaws
of a Controlling Parliament
Finally, there is a fourth function of parliaments, which forms a sort of background
for the ones analysed before: representation. It basically stands for the demand that a
parliament shall reflect and respond to political opinions held by the people, and shall
form a link between the government and the people.108
Without fleshing out this function and its problems, I will briefly illustrate two dimensions of representation, through which the different approaches of both models, and
the character of the European Parliament can be marked. These dimensions can be
termed the ‘where’ and the ‘who’ of representation, the first asking where exactly a parliament serves as a public forum (in the plenary or elsewhere), the second asking who
is the agent of representation (parties or rather single parliamentarians).
Turning to the first dimension, a central aspect of the representational function is
that parliaments are meant to serve as a public forum for society, mirroring public
opinion and instigating public debate.109 Parliaments are sounding boards for society.
This aspect has traditionally been regarded as a specific problem of the European Parliament, especially prominent being the assumption that the European Parliament will
for the foreseeable future not be able to serve as European forum because it lacks a
common language and a common civil society.110 However, the ideal types of parliaments show that the public forum function can be performed very differently, and that
even national parliaments with traditional civil societies have different levels of success
in doing so. Whereas for countries with a debating parliament the plenary debates are
really a part of public life and effectively the stage of political discussion,111 in countries with a working parliament the approach is very different:112 since the battle between
government and opposition in parliament is at the outset prevented by the incompatibility rule which forbids ministers from sitting in parliament, it is thus not the plenary,
but the parliamentary committees which serve as public sounding boards. They are
linked to the specialised public and succeed in giving voice to public opinion. This
approach, less fascinating and generally perceived, nevertheless provides links to the
public.
108
109
110
111
112
See J. H. H. Weiler, U. Haltern and F. Mayer, ‘Five uneasy pieces: European Democracy and its critique’,
(1995) 18 Western European Politics 6–9; also J. H. H. Weiler, ‘The Transformation of Europe’, op. cit.
note 18 supra, at 80–86. As to the more formal aspect of representation, e.g. the number of seats per
country, see K. Lenaerts and E. de Smijter, ‘The Question of Democratic Representation’, in A. Winter
and D. Curtin (eds), Reforming the Treaty on European Union (Kluwer, 1996), at 173); C. Lord, op. cit.
note 32 supra, at 44.
W. Bagehot, op. cit. note 33 supra, at 73–74; G. Löwenberg and S. Patterson, op. cit. note 55 supra, at 182.
This argument has been particularly strong in the German discussion D. Grimm, ‘Does Europe need a
Constitution?’, (1995) 3 ELJ 292–297; P. Kirchhof, ‘Der deutsche Staat im Prozeß der europäischen Integration’, in P. Kirchhof and J. Isensee (eds), Handbuch des Staatsrechts, Vol. VII, (Müller Verlag, 1992),
§ 183. Also J. H. H. Weiler et al., op. cit. note 109 supra, at 12.
A. Adonis, Parliament today 2nd edn (Manchester University Press, 1993), at 130.
W. Steffani, op. cit. note 30 supra, at 333; K. Bradshaw and D. Pring, op. cit. note 30 supra, at 360–362.
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Picturing the European Parliament as such a working parliament helps to better
understand its representational function and what it can accomplish (and what not).
Some of the reproaches loose their strength when re-conceptualised in the context of a
working parliament. This context entails, for example, that the European Parliament
‘naturally’ does not have such a vivid plenary culture as some debating parliaments. This
might be a deficiency but it is less a European one than a deficiency common to working
parliaments. Looking at the committee culture in the European Parliament easily underscores this point. It is the committees that attract most of the public recognition, by
working openly, pooling expertise and involving the interested public via hearings.113
However, these arguments do not obscure the flaws of the European Parliament.
Conceptualising it as working parliament might explain some aspects, but does not
render it a stainless organ of representation. Rather the contrary is true: the situation
of the European Parliament as working parliament appears worse because certain
makeshift structures, which in other political systems help to remedy the weaknesses
of such parliaments, are missing here. Turning from the ‘where’ of representation to
the ‘who’, we find these problems rooted in the representational role of parties and/or
single parliamentarians.
If the plenary as a sounding board is mute and the committees reach out but only
to a specialised public, then there are normally specific agents of representation in a
political system with a working parliament.114 These agents respond to political opinions held in society and represent them in the political system. There are mainly two
models: either political parties serve as ‘representative agencies’, offering a clear and
coherent programme that can be brought into the parliamentarian discussion and evaluated by the voters.115 Or there are single individual parliamentarians, who are taken
by their constituency as responsible delegate.116 Particularly where parties are rather
loose and decentralised organisations, providing little orientation for the voter, single
parliamentarians are considered to be delegates of a specific constituency. This model
has been especially used to explain representation in the US Congress.117
The problem with these two models in Europe is that both fail, for several reasons.118
There are, first of all, only very loose European parties that nearly completely fail to
offer a coherent European programme.119 European election campaigns have therefore
been dominated by national topics and rather served as test elections for the national
political class than as evaluations of European programmes.120 Moreover, empirical
113
114
115
116
117
118
119
120
C. Neuhold, op. cit. note 69 supra, at 9; R. Corbett et al., Parliament, at 7, 272.
These two models overlap with the aspect of the public forum. The aspect of ‘who’ is the agent of representation cannot be completely divided from the ‘where’.
See W. Müller, ‘Political parties in parliamentary democracies’, (2000) 37 European Journal of Political
Research 309–333; P. Mair, ‘Political parties, popular legitimacy and public privilege’, (1995) 18 Western
European Politics 40–57.
M. Marsh and P. Norris, ‘Political Representation in the European Parliament’, (1997) 32 European
Journal of Political Research 153–164; also G. Löwenberg and S. Patterson, op. cit. note 55 supra, at
167–170.
For a path-breaking American study, see W. Miller and D. Stokes, ‘Constituency influence in the US Congress’, (1963) 57 American Political Science Review, 45–56; also R. Fenno, Home Style: House Members
in their Districts (Little Brown, 1978).
See more extensively P. Dann, op. cit. note 9 supra, at 41.
For the history and current composition of the groups in the European Parliament, see S. Hix and
C. Lord, op. cit. note 94 supra, at 54; see also R. Corbett et al., Parliament, at 59.
K. Reif and H. Schmitt, ‘Nine second-order elections’, (1980) 8 European Journal of Political Research,
3–44; F. Van der Eijk and M. N. Franklin, Choosing Europe? (Ann Arbor, 1996), at 367.
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data shows that the MEPs are only barely representative of their electorate when it
comes to questions that actually concern European matters. MEPs are by far more
European than their constituencies.121
The model of single parliamentarians also fails, not only but mostly for one simple
reason: the size of the constituency. Most of the member states have electoral systems
that provide for only one national constituency in the elections for the European Parliament. That rules out (at least legally) any local basis of the parliamentarians.122 And
even if there are regional constituencies for European elections (as in Belgium, Italy,
Ireland, UK, and partly Germany), then these are still huge. In effect, MEPs are hardly
known in their constituencies. Thus, the model of parliamentarians being deeply
entrenched in one region and thereby triggering feedback and accountability, is structurally hampered in the EU. Tested again empirically, the actual responsiveness of
MEPs to their ‘constituency’ points to the same problematic direction as observed with
the party groups in the European Parliament.123
In sum, none of the models to provide representation works properly in the European context. The European Parliament, even understood as a working parliament with
its different and perhaps less prominent style, has a major flaw with respect to its representational function. This flaw is mainly due to the missing inter-mediating and representing work of parties and parliamentarians.
V Conclusion: Executive Federalism, Parliament and the Semi-Parliamentary
Democracy of the EU
A The Pieces Put Together: The European Paliament as Controlling
Parliament in the Executive Federalism
Finally putting the pieces together, we realise that European parliamentary democracy
is first of all a democracy grounded in the structure of executive federalism. This peculiar federal system, shaped most fundamentally by its interwoven competencies, entails
a need for executive cooperation and consensual decision-making.
The first result that follows from this approach is that the European Parliament
profits from the institutional structure of the executive federalism. This entails a system
of separated institutions sharing powers, very similar in that respect to the institutional
system in the US Constitution. Understood as a working parliament in this environment, the European Parliament is separated from the executive, and not involved in the
parliamentary logic of supporting a government. Instead, it gains autonomous standing with respect to its oversight and law-making functions, typical aspects of a working
parliament. It is a prickly partner that finds in its committees the central places of parliamentary work and influence. Moreover, the committees provide what the system of
separated institutions sharing powers and its heterogeneity demand, that is, a place for
negotiations between the party groups and with other institutions. Being itself a
heterogeneous body, it is a parliament that does not work along a majoritarian logic
121
122
123
See J. Thomassen and H. Schmitt, ‘Policy Representation’, (1997) 32 European Journal of Political
Research, at 165–184, 181; see also C. Lord, op. cit. note 32 supra, at 67.
R. Corbett et al., Parliament, at 12–13. C.f. C. Haag and R. Bieber, Art. 138, par. 42 in H. von der Groeben
et al. (eds), op. cit. note 57 supra).
M. Marsh and B. Wessels, ‘Territorial representation’, (1997) 32 European Journal of Political Research,
at 227–241.
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but is instead well-equipped to blend into the general consensus mode of the interinstitutional procedures in the executive federalism. What has been called the political
deficit (Renaud Dehousse), the consensual grey of compromise and diversity, turns out
to be the ‘efficient secret’ of the ideologically scattered European Parliament. In sum,
the European Parliament shows fundamental characteristics of a working parliament.
Yet, there are two aspects which distinguish it slightly from this type of parliament
and vindicate its being more specifically named a controlling parliament: First of all,
its power is mainly based on controlling competencies. The European Parliament can
chase away a Commission, it can amend or prevent most legislation, it has powerful
instruments to closely scrutinise the executive branch. But it does not have, especially
in the central law making function and in contrast to the US Congress, the initiating
and autonomous standing to positively make policies. It is therefore not a weak but
rather a controlling actor, it is a policy-shaping not a policy-making legislature. A
second and basic difference follows from its standing in the elective function; it has a
veto power with respect to the government. This does not render it a debating parliament (not even in future perspective) but more distinctly stresses its controlling role in
the institutional setting of the EU.
However, the European Parliament faces a most disturbing flaw in the representation function. Taking into account the structure of executive federalism might explain
that these flaws are less a European problem or supranational legacy, and more inherent in its character as controlling parliament. Yet, certain structures which could
remedy the representational weakness of a controlling parliament (and do so in
national political systems), are missing in the EU. Neither political parties nor single
parliamentarians serve as responsive representatives. This leaves the European Parliament with a serious weakness as to its public perception.
B
A New Label: The EU as Semi-Parliamentary Democracy
The description of this parliamentary model leads to one last consideration. Studies
of parliamentary democracy in the EU face a terminological problem. Speaking of a
‘parliamentary system’ is often misunderstood as meaning a parliamentary system as
known from the UK or continental democracies. Yet, the EU is surely not a parliamentary system in this sense. But it is neither a presidential system. What is it then,
this system based on federal thus consensual grounds, but with a strong legislature,
which is not dominating but nonetheless stamping the system?
I propose to call it a semi-parliamentary democracy.124 Looking at how political
systems are labelled in comparative studies, the relation between the executive and the
legislative branch generally serves as a central mark of distinction.125 Applying this
yardstick to the EU, we find that the EU has neither a directly elected president nor a
parliamentarily elected executive. Thus, the EU seems to be an undefined tertium.
Looking closer, though, we find its characteristic: the negative appointment power of
the European Parliament as a controlling parliament. As explained above, the European Parliament participates in the appointment of the Commission, but shares this
power with the Council. But since it is also not a loyal supporter of any given Commission, it is hence not enough to call it a parliamentary system. But the negative, sort
124
125
This term has, to my knowledge, been used so far only by Paul Magnette, op. cit. note 3 supra, at 302.
G. Sartori, op. cit. note 28 supra, at 84, 101, 131; A. Lijphart, op. cit. note 86 supra, at 116.
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of veto power in the appointment process and the emergency break in the running term,
gives the parliament a decisive say and the system a characteristic feature. From this
perspective the EU, having an executive that is in negative terms dependent on the European Parliament, is best described as a semi-parliamentary system.
European democracy is semi-parliamentary also for another reason—the effect of its
executive federalism on the composition of the executive. Due to this federal structure,
even properly elected parliamentary governments in Member States are bound together
in the European Council which has major governmental tasks but as such cannot be
parliamentarily dismissed, rendering elections an event without consequence.126 This
murky situation, ultimately rooted in the structure of interwoven competencies, crucially undercuts the principle of accountability and is at the same time the essence and
life insurance of the consensual federal policy. This odd but very distinct feature again
finds an appropriate label in the term of a semi-parliamentary democracy.
126
It is this aspect on which Paul Magnette rests his qualification of the EU as semi-parliamentary democracy, see supra 124.
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