European Parliament
1. General characteristics
The European Parliament is the only EU institution that can be categorized as clearly and unequivocally belonging to one of the three powers—legislature. Furthermore, it is the only institution directly elected by the public vote (since 1979) and therefore is based on the most solid chain of legitimacy. The Parliament is not so much a platform for interests that are peculiar to Member States as might be expected from its mode of election: not only are its members elected on a national basis, each Member State may also establish its own rules of procedure as long as uniform procedural provisions have not been successfully enacted. Practice has shown that the affinity most members of Parliament have for the Union tends to be stronger than their ties with the Member State where they were elected, a phenomenon that might also be attributed to the large number of EU Member States. Therefore, membership in European political parties, which according to the treaties contribute to ‘forming European political awareness’ (Art 10(4) TEU/191 EC) largely prevails over national affiliation. Incidentally, candidates for members of the Parliament are not required to be nationals of their state of residence since the right to stand as a candidate is conferred upon every citizen of the Union, as is the right to vote.
No other institution has changed as much as the one known today as the European Parliament. Its former names ‘Common Assembly’ and ‘Assembly’ (under the ECSC Treaty and the ECC Treaty, respectively) still reflect the traditional pattern of international organizations, whose quasi-parliamentary bodies are usually composed of persons elected by national parliaments (Council of Europe (institutional aspects)). As such, the ‘Assembly’ was limited to consultation and review in the first years but gradually gained decision-making powers, including budgetary rights, even without treaty amendments. In 1962, it dubbed itself the ‘European Parliament’, a name which was made official by the Single European Act in 1986. A milestone on its way towards becoming a real parliament was reached in 1979, when it was elected by direct universal suffrage for the first time (Decision 76/787 of the Representatives of the Member States Meeting in the Council Relating to the Act Concerning the Election of the Representatives of the Assembly by Direct Universal Suffrage). Every following amendment of primary law has continually extended the powers of the European Parliament, although it has never become the sole legislature and still shares its (by no means comprehensive) law-making powers with the Council (Council and the European Council). Although under Art 229 TFEU/196 EC the European Parliament is only officially required to hold at least one annual session, it has long been a permanently standing institution.
2. Functions, election and composition
a) Functions
As mentioned above, the European Parliament falls short of the expectations that might be attached to its name. First, it does not represent a ‘European people’, which is non-existent to date, but the various peoples of the states contained in the European Union. Secondly, it lacks a right to submit proposals (or motions) for legislative acts. Thirdly, its legislative powers are limited by those of the Council and do not go anywhere beyond being a co-legislator on equal footing with the latter (cf Art 14(1)(1) TEU/not yet this explicit in 251 EC). The treaty even provides for situations where the European Parliament is limited to a right to be heard or a right of assent (Council and the European Council). Likewise, adoption of the EU budget is not, as in national parliaments, an exclusive prerogative of the elected representatives, but is a shared matter of the Council and the European Parliament (Art 314 TFEU/272 EC).
On the other hand, the European Parliament comes close to what a national assembly is entitled to do with respect to a government in that it is empowered with electing the President of the European Commission and the College of Commissioners as well as forcing them to resign (European Commission). Even though the Parliament can only express itself in a ‘negative’ way by rejecting the candidate for President or the candidates for the College of Commissioners as a whole and cannot present candidates on its own, it becomes clear that the Commission is responsible to it. This is now enshrined in Art 17 (8)(1) TEU.
b) Election
Article 10(1) TEU now officially declares the functioning of the Union to be founded on representative democracy. Whereas according to Art 189 EC the European Parliament consisted of ‘representatives of the peoples of the States brought together in the Community’, Art 14(2)(1) TEU appears to avoid this reference to the national level. The reference to ‘representatives of the Union’s citizens’ made by this provision masks the fact that elections to the European Parliament, to be held at five-year intervals (Art 14(3) TEU/190(1), (3) EC), have thus far been little more than a bundle of synchronized elections on national levels and that the Treaty of Lisbon does not automatically change this.
Determining the system of election of members of the European Parliament is a Member State competence, and therefore electoral systems vary throughout the Union. This means that some of the deputies are elected by proportionate representation and others in a first-past-the-post vote. The treaty (Art 223(1) TFEU/190(4) EC) invites the European Parliament, Council and Member States to agree on a uniform election procedure, but no steps have been taken to this end until now.
On the other hand, European political parties have already been formed, although, strictly speaking, they are constituted by alliances of Member States’ political parties with similar political programmes. Apart from outlining the overall importance of European parties, the treaty lays the groundwork for their public funding (Art 224 TFEU/191(2) EC), which doubtless is an incentive for their creation. The Rules of Procedure of the European Parliament (Art 232(1) TFEU/199(1) EC) provide for the formation of parliamentary groups. The Statute on Rights and Duties of the members of the European Parliament was passed in 2005.
c) Composition
The European Parliament consisted of 785 members until the 2009 election. After a transitional period, the total number of seats will be fixed at 750 (Art 14(2) TEU). Before the entry into force of the Treaty of Lisbon, the distribution of seats followed a ‘weighted distribution key’ set out by 190(2) EC (which was supplemented by Art 11 of the 2003 Treaty of Accession with respect to the new Member States). This weighted distribution key acknowledged the need for adequate representation of smaller Member States like Cyprus, Luxembourg or Malta and must be considered a deference to national sovereignty. As a consequence, the most populous Member State of the Union (Germany), which has 200 times as many inhabitants as the smallest one (Malta), could only fill just under 20 times as many seats in the European Parliament (99 against 5). Now, under the Treaty of Lisbon, Art 14 TEU does not specify the number of representatives apportioned to each Member State, but rather defines a lower and an upper threshold (6 and 96, respectively) as well as a maximum size for the whole Parliament (750 members). Details of the composition are to be fixed by the European Council, acting by unanimity (Art 14(2) TEU). The imprecision of the treaty in this regard, confining itself to prescribing a ‘degressively proportional representation’, could become a potential source of conflict.
Inside the Parliament, the members belonging to the same political party form parliamentary groups; details are provided for by the Rules of Procedure that the European Parliament adopts pursuant to Art 232 TFEU/199 EC. It has established more than 20 Standing Committees, whose configuration is more or less modelled on the Commission’s Directorates General (with the noteworthy exception of the Petition Committee). The Parliament also elects its President and its officers (Art 14(4) TEU/197(1) EC, the Ombudsman, whose tasks are set out in Art 228 TFEU/195 EC, and, where required, temporary Committees of Inquiry (Art 226 TFEU/193 EC).
3. Functions in detail
a) Law making
The European Parliament is the most important law-making body apart from the Council. The Treaty of Lisbon emphasizes this by classifying ‘ordinary legislative procedure’ as the joint adoption of acts by the Council and the European Parliament (Art 289(1), 294 TFEU/251 EC), which has so far been known as ‘co-decision’ (see Art 251 EC). The formerly predominant ‘co-operation procedure’ (Art 252 EC) had become all but meaningless following several amendments to the primary law and has now been completely abolished by the Treaty of Lisbon. While the treaty does not equip the European Parliament with a right to submit proposals for legislative acts, Parliament can instead formally request the Commission to submit any such proposals (Art 225 TFEU/192(2) EC).
‘Special legislative procedures’ are defined as the adoption of acts by the European Parliament with the participation of the Council, or vice versa (see Art 289(2) TFEU). Contrary to the impression given by the wording, special legislative procedures, few in number, hardly enhance the status of the European Parliament, for virtually all of them give the Council the leading role, reducing participation of the European Parliament to a required consent and, in some cases, to a mere consultation. This ranking is reversed only where special legislative procedures aim at regulating internal affairs of the European Parliament (rights of members, regulations and general conditions governing the position of the Ombudsman and of Committees of Inquiry etc; see Arts 223(2), 226(3) and 228(4) TFEU/190(4), (5), 193(3), 195(4) EC). Important examples of Council-dominated special legislative procedures are adoption of anti-discrimination rules (Art 19(1) TFEU), harmonization of turnover taxes (Art 113 TFEU/93 EC) and specific acts relating to judicial cooperation (as provided for in Art 81(3), 86(1), (4), or 87(3) TFEU). Article 352 TFEU, which allows the Union to supplement its set of competences within the framework of policies defined in the Treaty, has upgraded participation of the European Parliament to consent from the mere consultation required by Art 308(1) EC. This applies independently of whether the required acts formally qualify for the special legislative procedure under Art 289(2) TFEU).
Consent or assent means that the European Parliament can only accept or reject a measure but is given very little influence on its content. It is required, inter alia, for some treaties of the Community/Union (Art 218(6)2 TFEU/300(3)(2) EC) as well as agreements on the accession of states to the Union (Art 49 TEU/49 EU). The number of provisions that limit the European Parliament to consultation is in decline and only a modest number of them are left after the entry into force of the Treaty of Lisbon; (most importantly, Arts 21(3), 22 and 23(2) TFEU/18(2), 19, 20 EC—rights attached to Union citizenship; Art 77(3) TFEU/62(3) EC—passports and identity cards; Art 95(3) TFEU/75(3) EC—discrimination in carriage of goods; Arts 103(1) and 109 TFEU/ 83, 89 EC—competition law; Art 109 TFEU/89 EC—harmonization of turnover taxes; Art 129(4) TFEU/107 EC—Statute of the European System of Central Banks; Art 203 TFEU/187 EC—association to the Union; Art 286(2) TFEU/247 EC—election of members of the Court of Auditors; Art 333(2) TFEU/11, 11(a) EC—enhanced cooperation; plus a number of provisions that either aim at regulating administration and administrative procedure within Member States or the establishment of specific Union programmes).
b) The ordinary legislative (co-decision) procedure
Co-decision—now officially known as ‘ordinary legislative procedure’ (Art 289(1) TFEU)—implies that the European Parliament and the Council rank equal as legislatures (Art 294 TFEU/ 251 EC). The procedural mechanism encompasses parallel but also reciprocating and cooperative elements; where both bodies are not in agreement, adoption of an act requires the Council to overcome its national focus and the European Parliament to put aside its ideological strategies. First, the Commission submits a proposal both to the Parliament and the Council (Art 294(2) TFEU/251(2) EC). The Council may adopt the text as proposed unless the European Parliament has proposed amendments, in which case the Council would have to approve the amended version. Otherwise it adopts a so-called common position and communicates it to the European Parliament. The latter has then three options, just like the Council at the preceding stage. It may reject the common position, which requires the absolute majority of its members; it may approve it; or it may propose amendments.
In the first of these cases, the proposed act ‘shall be deemed not to have been adopted’—that is, it has definitely failed—whereas upon its approval the act shall be ‘deemed to have been adopted’. If the European Parliament proposes an amendment, it is again the Council’s turn, but its options are now reduced to two: approval of all amendments or (partial or complete) disapproval. Approval will lead to the adoption of the act but requires a qualified majority (Council and the European Council) and even a unanimous vote where the Commission has delivered a negative opinion on the amendments. Otherwise, the act has not failed but will be referred to the Conciliation Committee, a body composed of the members of the Council and an equal number of representatives of the European Parliament. If the Committee manages to approve a joint text, the European Parliament and the Council must simultaneously and independently decide upon it. The act shall only be deemed to have been adopted if both entities cast a positive vote within a period of six weeks. A specific joint law-making procedure deviating from the one set out by Art 294 TFEU/251 EC is enshrined in Art 336 TFEU/283 EC. Enacting staff regulations for the Union falls within the common responsibility of the Council and the Parliament.
c) Non-legislative functions
Apart from legislating, the European Parliament fulfils a set of other tasks that are typical of parliamentary bodies. It elects its own President and its officers among its members (Art 14(4) TEU/ 197(1) EC), but it is also involved in constituting the Commission (see above). Just like national parliaments, it is endowed with the right to set up Committees of Inquiry (Art 226 TFEU/193 EC) and to receive and deal with petitions filed by citizens of the Union (Art 227 TFEU/194 EC). This activity is independent from those of the Ombudsman, who is also appointed by the European Parliament (Art 228 TFEU/195 EC) and whose function is to investigate complaints about maladministration in the activities of institutions of the Union other than its courts.
The European Parliament has a right of inquiry enabling it to ask questions which the Commission must answer (Art 230(2) TFEU/ 197 (3) EC). A similar right is recognized in relation to the Council on a customary basis. The Parliament may not, however, summon the Commission, the Council or their members in the same way that national representative bodies can. Conversely, the Commissioners have been given a right to attend all meetings of the Parliament and to be heard by the Parliament, as does the Council (Art 230 (1), (3) TFEU/197(2), (4) EC).
Literature
Michael Palmer, The European Parliament (1981); Kieran St Clair Bradley, ‘The European Parliament and Comitology: On the Road to Nowhere?’ [1997] ELJ 230; Olivier Costa, Le Parlement européen, assemblée délibératoire (2001); Christine Neuhold, Das Europäische Parlament im Rechtsetzungsprozess der Europäischen Union (2001); Peter Huber, ‘Das institutionelle Gleichgewicht zwischen Rat und europäischem Parlament in der künftigen Verfassung für Europa’ [2003] Europarecht 574; Ute Seibold, Die Kontrolle der Europäischen Kommission durch das Europäische Parlament: Inhalt und Umfang (2004); Jo Shaw, The Transformation of Citizenship in the European Union—Electoral Rights and the Restructuring of Political Space (2007); Francis Jacobs and Michael Shackleton, The European Parliament (7th edn, 2007); David Judge and David Earnshaw, The European Parliament (2nd edn, 2008); Panos Koutrakos, ‘New links in the Union’s institutional chain’ [2010] E L Rev 1.
