Challenging the king

Date: 08/02/1996

By Ian S. Forrester QC

THE European Parliament used to be an unpredictable nuisance in the minds of lawyers who specialised in Euro law.

Its role in the legislative process was clearly inferior to that of the Commission, which had the ideas, and the member state delegates on the Council of Ministers, who had the power.

The parliamentary committee responsible for reviewing the legislation could make comments and propose amendments, but the quality was often not high.

Although the Commission and the Parliament should have been natural allies, Commission officials often regarded the time devoted to the process of parliamentary review as a tiresome necessity.

MEPs attacked the Commission, just as in past centuries national popular assemblies used to challenge the king's ministers. The underlying struggle between the king and the people was not pursued, since ministers made a more convenient target.

Something has clearly changed. Do member state delegates who attend Council meetings welcome the popular endorsement which MEPs purport to offer?

Certainly not - civil servants prefer to draft legislation quietly among experts and without the nuisances of having to justify concessions, clarify equivocal language or demonstrate how to reconcile member state differences.

However, the Commission is somewhat more enthusiastic: after all, it is difficult to deplore democracy.

The press certainly favours it because it is much more interesting to watch 626 Euro MPs in a unique colourful, multi-lingual and cultural environment than to sit outside Council of Ministers meetings waiting for information to be leaked.

The shift in the institutional balance in favour of the Parliament is due to several factors.

The first of these is the Maastricht Treaty, which created several different procedures for the adoption of legislation. Whereas in prior versions of the EEC and EC Treaties, the steps by which the Parliament could have its say were cursorily described, Articles 189 and following of the EC Treaty, as amended by the Maastricht Treaty, spell out in detail how the Parliament and the Council shall cooperate in the adoption of legislation.

In particular, Article 189 (b) contains 12 paragraphs and subparagraphs in 71 lines of small print, and appears to have been drafted by a mathematician or a canon lawyer.

It unquestionably shows diligence - it is precise, it is dense, and there is doubtless lots of logic in the text - but what it all means is far from clear. Textual archaeologists will one day write PhD theses on the arcana of how the Maastricht Treaty created more than ten different procedures (some specialists say they can detect 20) governing the working together of the Council and the Parliament. There are lots of polysyllables beginning with 'co' used to clarify things, co-decision, cooperation, consultations, and so on.

In any event, whatever these new words were expected to achieve, they were unquestionably meant to ensure that MEPs had an expanded role in the process of agreeing on new EU legislation.

In addition, the Parliament's powers have been increased by a number of more informal texts not enshrined in the treaty.

Last January, nominee Commissioners had to endure the scrutiny of the Parliament, whose approval was necessary for their confirmation.

A code of conduct signed by Commission President Jacques Santer and Parliament President Klaus Hänsch emerged after the Commissioners were confirmed. The code goes further than the Maastricht amendments to the EC Treaty in committing the Commission to provide information to the Parliament before taking initiatives. Thus, the making of non-binding recommendations (in the field of health or environment, for example) by the Commission does not call for the MEPs' involvement under the treaty, but the code of conduct requires it.

According to the code of conduct, under the co-decision procedure the Council can no longer sit on a Commission proposal to prevent it from reaching the Parliament. A more cautious code of conduct governing the Council was adopted in October 1995.

These codes, especially the Commission's, will apply the pleasures and drawbacks of democracy to a widening circle of acts - public knowledge, reports, debate and voting.

How the legal powers of an elected parliament are exercised determine how successful it is in achieving real political power.

The member states clearly do not favour giving MEPs any more control. The Intergovernmental Conference (IGC) will proceed to review the reform of Article 189 (b) without the participation of the Parliament, even as an observer.

If more decisions were attributed to national parliaments, some argue, this would be good for subsidiarity and for national governments who can control their own assemblies more consistently than the one in Strasbourg.

But what will happen if the king says to the parliamentarians that he is closer to the people than they are and his ministers should be guided by the deliberations of town councils and village meetings?

This article reflects the personal views of the author.