Should the European Parliament Gain the Right of Initiative for Legislation?

https://doi.org/10.63189/PTGQ1488

Introduction

The European Parliament (“EP”) is seeking the right to initiate legislation. This would represent the most significant change in its functioning in 45 years, comparable in importance to the introduction of direct elections at this organisation. However, it is necessary to consider whether this is a reasonable change.

The EP is a distinctive entity within the broader context of EU institutions. Despite its designation “Parliament”, which implies that it is the supreme legislative body, this is not the case. The legislative powers of the EP are constrained by the necessity to collaborate with the Council and the Commission. If we were to apply the EU’s own regulation of unfair commercial practices with hyperbole, it would not withstand scrutiny. The EP is not what its name would suggest. The name is, therefore, misleading to some extent.

Furthermore, the functioning of the EP is not optimal. The issues pertain to both the external and internal setting of this institution. In this context, the term “external setting” refers to the position of the EP within the broader system of EU institutions. The term “internal setting” refers as much to the manner in which this institution operates as to the composition of its members.

Moreover, the legitimacy of the EP diverges significantly across EU countries, with some exhibiting particularly low levels of support. In the Czech Republic, for instance,  only 18.2% of the electorate voted in 2014.  The turnout in this year’s elections of this body reached over 30% for the first time. Nevertheless, even this new figure still falls short of what could be considered a successful electoral outcome.^[1]

This paper will not address issues pertaining to the internal setting of the EP, nor will it assess voter turnout rates. It is, however, notable that this body has recently initiated a change to its Rules of Procedure with the objective of streamlining its internal decision-making processes. The issues regarding its functioning are therefore identified and addressed by this institution.

The core of the problem

To fully understand the functioning of EP, it is essential to consider the external setting. However, the current situation is not imputable to the institution’s responsibility as it is the result of its historical development, the political situation (in this case, politics is the art of the possible more than in other cases within the EU,), and the fact that the EU, while resembling a “state” in its functions, is still, in fact, a mere conglomerate of states and nations.

The emphasis on nations is deliberate, as there is no single European nation yet. This is a factor that is indeed essential to the existence of a parliamentary-type body whose task is to represent a nation, or, more generally speaking, people. We will see the reasons for this latter in the example of Belgium.

It is similarly crucial to acknowledge that the operational capacity of the EP is contingent upon the consensus of the Member States (MS). It is the Member States that bear responsibility for defining the powers of this body and for determining the means of its cooperation with other EU institutions. It is therefore inaccurate to attribute the responsibility of the EU for the current structure. The aforementioned deceptive practice is, in fact, perpetrated by the MS.

It is evident that the existing structure is not aligned with the preferences of a considerable number of MEP’s. Such a state of affairs is hardly surprising. In comparison to their counterparts in national parliaments, they are effectively constrained in their ability to promote their ideas and needs, or those of their voters. Indeed, the power to initiate the legislative process is, with few exceptions, the domain of the European Commission. As a result, the legislative process in the EU is not entirely in the hands of voters, or more precisely, their direct representatives.

The EP has therefore proposed changes to primary law that would allow it to “gain the right of initiative for legislation, in particular the right to introduce, amend, or repeal Union law”.^[2] Hand in hand with this, it also proposes, among other things, institutional changes that would alter its relations with the Council and the Commission. The effect of these changes would not only extend the powers of the EU at the expense of the MS, but also bring its functioning closer to parliamentary democracies.

These proposals are comprehensible from the perspective of the EP. However, their feasibility remains uncertain. Several challenges impede their implementation. Primarily, it is so because they are premature in their conceptualisation.

What factors contribute to this premature development? European integration is conceptualised through diverse theoretical lenses. The dominant paradigms include functionalism, neofunctionalism, liberal intergovernmentalism, multi-level governance, and eurofederalism.

The current phase of the EU’s development is best conceptualised within the framework of neofunctionalism. From its inception, the role of the Commission has been pivotal. Indeed, it is this institution that provides the impetus for further integration. It is evident that MS play a significant role in the process of integration. The role of the European Parliament (EP) is also fundamental in this context, as it ensures democratic processes and pluralistic representation. However, it is important to recognise the limitations of the EP. In this system, the real power lies complementary to the power of the Commission with national governments voluntarily transferring their powers to the supranational level.

The changes in the functioning of the EP proposed by this body would mean a shift towards eurofederalism, a completely different model of European integration. In principle, this is not a bad solution. However, the question is the following: Is this really what the citizens of the EU wish for?

Eurofederalism does not adequately explain the current structure of the functioning of the EU. In theory, the people should be the driving force, but in practice, they are not. The EU has always been a project of the elites. It seems unlikely that people would want such a significant change.

It is paradoxical that the further strengthening of the EP may have resulted in the consequent strengthening of the voices of eurosceptics and their voters. Indeed, opposition to the EU was a significant factor in the high level of voter turnout in the last EP elections in the Czech Republic in 2024.^[3] What may be perceived as a success of European integration – a higher turnout in elections - in fact points to the fact that in some Member States people do not essentially want integration and perceive the EU as a threat. Issues promoted by the EU, such as solutions to the immigration crisis or the European Green Deal, seem to be a threat uniting ordinary people against the EU. Therefore, the high turnout in the Czech Republic’s European elections is not a proof of success, but rather a signal of popular opposition to the EU.

A strong EP means that there should be common themes and common policies. However, there are currently few genuinely common themes of EU dimensions between Member States. Different economic and living standards in MS lead to different priorities.^[4] Cultural differences between the Member States are not negligible, either. From this perspective, stronger roles for the Commission and the Council in the EU process make sense. Within this tandem, the integrating element (the Commission) is well-balanced with the stabilising element (the Member States in the Council).

There is no easy way to harmonise the differences between people from different Member States. Instead, it is probable that the strengthening of the EP’s power will serve to accentuate these discrepancies, thereby heightening frustration within the Member States, particularly the smaller ones.

On numerous occasions, members of the EP have exhibited a deficiency in the capacity to exercise restraint, a quality that is more commonly observed in the Council and the European Commission. These two institutions appear to be more inclined to acknowledge the limitations of the EU’s competencies.

Introducing the possibility of a legislative initiative would have certain positive aspects. It would contribute further to the elimination of the democratic deficit in the EU. However, it is necessary to consider the potential costs involved.

In my view, the notion of a so-called democratic deficit is a misrepresentation that fails to reflect the reality of the situation. It represents a convenient narrative that allows critics of the current system to focus on the formal aspects of the EU’s functioning, while ignoring the material reality. In fact, the EU is a highly democratic entity. 

The problem is that those advocating the extension of the powers of the EP focus too much on what they comprehend from the national level. They attempt to directly transfer from the state to the international organisation what is already familiar to them (and what is evidently effective at the national level), without fully recognising the inherent differences and particularities of the EU. Consequently, they fail to anticipate the natural progression of the situation.

The risks and drawbacks of over-strengthening the powers of the EP can be empirically demonstrated. Belgium is a small EU of sorts. It is also a clear example of why the above proposals cannot work in practice.

The Belgian political system is marked by several factors that contribute to its inherent complexity. These factors include the difficulty in forming a government, the prevalence of linguistic diversity, the prominence of regional interests, the lack of national and state-wide political parties, the regional focus of political parties, the tendency for individuals to identify primarily with their region rather than the state, and the absence of a unified national identity. These characteristics have led to a lack of effective governance at the central level, with a potential risk of the disintegration of the entire state.^[5]

The strengthening of the powers of the EP in any respect represents a path towards Belgium’s destiny. If European integration is understood as a process, it is essential to accept that we are at a certain stage in that process. This phase is not conducive to the introduction of changes that define the goal of integration rather than its path.

What is the optimal course of action? There are a number of potential solutions for consideration.

1.   The ambitious proposal put forth by the European Parliament represents a significant stride towards the federalisation of the EU.

2.  The second option is to revert to the previous structure of the EP, which was comprised of representatives from national parliaments. Two sub-options were then available for consideration:

a.     the “original” EP with the same powers as currently held, or

b.    the “original” EP with the right to initiate the legislative process.

3.    The third option is to take no action.

4. Retain the current powers of the EP, but also include national parliaments in the legislative process.

Each of these options has its advantages and disadvantages. The first option has already been evaluated. Although not legally problematic, from a political standpoint, it poses a significant risk to the future of the EU.

The second solution would represent a regression in the development of the EU. Consequently, it is unlikely that it would be practically feasible. The advantage is  a closer connection with national parliaments and national laws. From the perspective of supranationalism, the disadvantage would be that the actions of the EU could be significantly influenced by the Member States.

It is worth noting that inaction can, occasionally, be an efficacious method for addressing challenges. The current system may not be the optimal solution. However, it is an effective answer that does not generate significant tension. This is, in itself, a noteworthy achievement.

Upon initial examination, it appears that the involvement of national parliaments is not a viable solution. The current ordinary legislative process is structured in a way that effectively makes it bicameral. The Council and the Parliament must cooperate. The inclusion of national parliaments would result in a tricameral system. However, historical experience demonstrates that such a solution is not sustainable in the long term.

Yet, the idea of strengthening the influence of national parliaments is not reprehensible.  It definitely makes sense in the case of legislation adopted in the area of shared competences. The national parliaments should be able to decide by simple consent (i.e. binary consent). The interdependence between EU and national legislation is high in many cases. This is particularly the case when the EU adopts directives or legislation that require supplementation or implementation by national laws. Such solution has also the potential to replace the dysfunctional control system of subsidiarity. Concurrently, this would undoubtedly contribute to reducing the much-criticised democratic deficit. Furthermore, it would have the advantage of changing the relationship between the EP and national parliaments. Currently, the latter functions as an instrument of limited control vis-à-vis the European Parliament (subsidiarity), as well as an instrument of the somewhat mechanical implementation of their norms. Including them would signify a shift towards cooperation and the shared shaping of EU law.

Conclusion

I believe that the federation should be built by the people, and not by the elites, of which MEPs form part. The changes that the EP is proposing are not democratic from this point of view. They are ahead of their time and come from the political elites, while there is no demand for it among the people. Ultimately, they constitute a risk rather than an opportunity for the EU.

In lieu of grandiose gestures and formal alterations, as well as an accentuation of self-promotion, EU institutions would benefit from focusing on their work. This may be less visible, but is solid and sincere. This approach could render the EU indispensable for its Member States and the European citizens. In addition, it could drive the process of integration. The EU institutions have already demonstrated the feasibility of this approach, as evidenced by their coordination of the purchase of vaccines or the exit strategy after the Covid crisis.

If institutional reforms are required, why not reform the Commission? The current system over-emphasises the role of the Member States and the EP in its establishment. Therefore, it does not guarantee the sufficient separation of powers in the EU. The consequence is that it may not be the best candidate who will become President of the Commission, but the candidate who bothers the majority of the Member States the least. A President of the Commission elected directly by voters could be the answer to these problems. As a representative of the institution that pilots the EU, the President would be required to present a political agenda to the people of the Member States and demonstrate its alignment with the interests of the EU’s citizens. This process could potentially facilitate a decrease in the existing division between the EU’s political elites and its general population, and again, promote the process of EU integration.

^[1] Severa, D., Juna, P. Eurovolby: Výsledky a volební účast od roku 2004 do 2019. Available: https://www.seznamzpravy.cz/clanek/volby-eurovolby-vysledky-mandaty-volebni-ucast-234359 (20 July 2024).

^[2] European Parliament resolution of 22 November 2023 on proposals of the European Parliament for the amendment of the Treaties.

^[3] Mahdalová, K., Škop, M. Exkluzivní průzkum ukázal, proč Češi přišli volit v rekordním počtu. Qvailable: https://www.seznamzpravy.cz/clanek/volby-eurovolby-exkluzivni-pruzkum-ukazal-proc-cesi-prisli-volit-v-rekordnim-poctu-254454 (16 July 2024).

^[4] Podlešák, V. Bezpečnost je prioritou, klima ne. Výzkum ukazuje, jak se postoje Čechů liší od zbytku EU. Qccessed: https://ct24.ceskatelevize.cz/clanek/svet/eurobarometr-bezpecnost-a-migrace-cechy-zajimaji-zmena-klimatu-ne-348266 (30 April 2024).

^[5] Vítek, S. Existuje vůbec Belgie? Volby oživily staletou otázku, na kterou neexistuje jednoduchá odpověď. Accessed: https://www.e15.cz/nazory-a-analyzy/existuje-vubec-belgie-volby-ozivily-staletou-otazku-na-kterou-neexistuje-jednoducha-odpoved-1416653?recombee_recomm_id=a041ac24b672223e425072e0aba76ddb (30 April 2024).