by Carlos Botelho Moniz, Chairman - Portuguese European Law Association

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European Union citizens will be called to the ballot boxes between 23 and 26 May 2019 to elect the members of the European Parliament for a new 5-year term that will last until 2024. It will be the ninth time, since the first direct election in 1979, that the members of the European Parliament are directly elected by citizens through universal suffrage, in elections held during the same time period in all the Member States of the European Union.

It is the largest example of transnational democracy at work in the world, involving hundreds of millions of voters and its mere occurrence on a continent that over the centuries, particularly in the 20th Century, was plunged into devastating conflicts between the States that today comprise the EU, is a powerful reminder of the strength of democratic ideals and the fundamental importance of the European Union to guarantee peace, security, justice and a balanced, sustainable economic development of our continent. ​
It is evident that there are worrying signs, above all the high abstention rate that has been forecast, and that we are living in times of doubt and with many question marks over the options to be taken at European level and the routes to be followed by the European Union in order to pursue the objectives that the Member-states proclaimed in the founding treaties. The repercussions of the grave financial crisis are still visible, a crisis that rocked the very foundations of the euro and deprioritized the social and economic cohesion policies that are one of the fundamental pillars of the economic and monetary union. We are also living through a migratory crisis of significant proportions, that has caused serious internal divergences and has galvanised the growth of nationalist and xenophobic forces. The signs of fragmentation and disarray of the political party systems have increased in several Member-states of the Union, with growth of extremist and anti-European political groups. There are multiple threats to peace and security in international relations as well as to the development of world trade, and we are faced with pressing challenges due to climate change and the environmental impacts that result from the development model that has been pursued globally. Technological transformations and the digitalisation of the economy are having profound implications on our lifestyle and social relationships. There are serious and disturbing violations of the fundamental values of the EU, such as the Rule of Law and freedom of the press, as well as the proliferation of hate speech and the ostracization of “others” that has become normal public discourse in several EU states. The Brexit issue is very much on the political agenda and still unresolved – the United Kingdom being manifestly unable until now to define, within the context of its domestic political system, a coherent and functioning approach to the decision to exit the European Union that was taken in the 2016 referendum.

There is also, however, growing awareness that none of these problems, none of these challenges, none of these crisis factors will be adequately responded to by the States that compose the European Union if they act unilaterally and in isolation from each other but only, instead, by applying approaches that are thought-out, decided and implemented jointly. Naturally respecting the political, social and cultural differences and particularities of the various peoples and of each State, but accepting and understanding that what brings Europeans together, based on the fundamental values of the Union as announced in Article 2 of the Treaty on European Union , is much stronger than that which divides them.​

It is against this backdrop of uncertainty and doubt surrounding the future that the next elections for the European Parliament assume great significance. This is not only due to the debate and the confrontation of ideas and options regarding the future of the EU that these bring about, reflected in the future composition of the parliament and the relative weight of the different political groups, but also because the increment of powers of the European Parliament, from the Maastricht Treaty to the Lisbon Treaty, turns this European institution into a very significant actor of the decision-making process with regard to the major issues mentioned above. Hence the importance of drawing attention, even if in summarised form, to the range of the powers of the European Parliament and the way that it interacts with the other political institutions of the EU.

The first aspect that should be mentioned is that the European Parliament is, clearly, the EU Institution whose juridical-political status has changed the most in the period since the creation of the European Communities in the 1950s to the present day[i]. The European Parliament has developed from an indirectly elected body (composed of members of parliament appointed by the national parliaments from among their own members), with merely consultative powers, to become a directly elected body with decision-making powers in the fields of legislative procedures, budget procedures and external relations, as well as having important political oversight functions. It exercises its powers and duties in articulation with the other political institutions of the EU, particularly, the Commission, the Council and the European Council and the truth of the matter is that the co-decision philosophy has been extended to all these fields, with significant strengthening of the European Parliament’s intervention.

Firstly, the Parliament intervenes decisively in the appointment of the European Commission and exercises political oversight over it, even having powers to remove the Commission from office by means of a vote of no-confidence. In effect, although the European Council is responsible for proposing a candidate to the position of President of the Commission, this proposal should consider the results of the elections and, in truth, since the last elections in 2014, the main political forces organised at European level have indicated ex-ante who they propose as candidates to the position (the so-called Spitzenkandidaten), restricting the choices of the European Council in this way.

The increased fragmentation of the political forces represented at the European Parliament, which is likely to be the outcome of the 2019 elections according to the polls, may result in more complex negotiations and the European Council will foreseeably hope to take advantage of this fragmentation in order to increase its margin for autonomy in choosing who will be presented as a candidate for election to that position. Nonetheless, it will be difficult, though not impossible, that the Parliament may accept and confirm a candidate that is not one of the Spitzenkandidaten. Furthermore, the European Parliament also has the power to confirm the list of nominees for the duties of commissioners, which is adopted by the Council in agreement with the Commission’s president-elect. In addition to the overall approval of the collegial list of commissioners, the European Parliament has developed the practice of individually hearing the candidates to commissioner, which allows it to more directly influence those individual choices. This is because the negative appraisal of a candidate, as has happened in the past, although it is not legally binding, may have repercussions on the definitive approval of the overall list of candidates and lead to the replacement of a candidate who received a negative appraisal, in order to avoid the total rejection of the list.

In the legislative field, the co-decision procedure (the so-called ordinary legislative procedure), specified in Article 294 of the Treaty on the Functioning of the European Union (TFEU), lays out a system in which the Commission maintains its legislative initiative, in general, but its proposals are submitted to a decision-making process in two readings, both by the Parliament and by the Council, whereby the act in question (whether a regulation, a directive or another type of legislative act) is approved only if it has the agreement of both institutions. In the event that the Council does not approve the amendments proposed by the Parliament in the second reading, a conciliation committee is convened in order to negotiate a joint draft which can be submitted for the approval of the Parliament and the Council. If an agreement cannot be reached or if the draft negotiated by the conciliation committee is not approved by the two institutions, the act is not adopted, which clearly demonstrates the extent to which the intervention of the European Parliament has gained weight in legislative procedures.

Also, the rules in force with regard to the budgeting area, require that decisions are adopted by agreement between the Council and the European Parliament, both as regards the approval of the multiannual financial framework (v. Article 312, TFEU) and the approval of the annual budget (v. Article 314, TFEU). For the latter, a decision-making procedure has been established that has certain similarities with the ordinary legislative procedure, involving successive readings by the Council and by the Parliament of the draft budget drawn up by the Commission, and also the possibility of negotiation through a conciliation committee, for the purposes of finding solutions to iron out any disagreements that may arise between the Parliament and the Council.

Finally, in the field of external relations and, more specifically, as regards the approval of international agreements entered into with non Member States or with international organisations, in most of the areas covered by the competencies of the European Union, although with exceptions in the fields of security and defence, the prior approval by the European Parliament of the agreements negotiated by the European Commission (which, in turn, has to act in conformity with the negotiations mandate granted by the Council) is required for the Council to internationally bind the EU.

The European Parliament is, therefore, currently one of the political institutions of the European Union with a very significant role in the negotiation and adoption of decisions in a variety of fields of activity – in law-making, budgeting and external relations – with relevant authority of the highest order both in terms of the definition and the implementation of the Union’s internal policies and also the Union’s relationship with other international actors.

Accordingly, the importance of the elections for the European Parliament, which will take place from 23 to 26 May, cannot be overstated seeing that these serve to elect the members of Parliament who will represent the citizens of the various Member-states of the EU in a parliament that will be a decisive actor in the complex negotiations at the core of the European Union policies to be defined for the next five-year term of office. It will be a term of office filled with uncertainties and threats and which will certainly require a spirit of compromise and an ability to negotiate, but also courageous and innovative responses to the challenges facing the Union.

Picture credits: European elections… by Marco Verch.

[*] The author is chairman of the Board of the Portuguese European Law Association (“Associação Portuguesa de Direito Europeu – APDE”), partner at Morais Leitão, Galvão Teles, Soares da Silva & Associados, SP, RL.

[i] See, among others, Manual de Direito da União Europeia, Ana Maria Guerra Martins, Almedina, second edition, 2017; European Union Law, edited by Catherine Barnard & Steve Peers, Oxford University Press, second edition, 2017; The Law of the European Union, edited by Jan Kuijper and others, Wolters Kluwer, fifth edition, 2018.