Editorial of January 2020

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by Tiago Cabral, master in EU Law - UMinho


Legislative Initiative for the European Parliament: A Wish for 2020

1. It is challenging to argue that the selection of Ursula von der Leyen for President of the European Commission (hereinafter “EC”) was the result, in any conceivable way, shape or form, of a victory by the European Parliament (“hereinafter “EP”) in the traditional power struggle between the Institutions. The spitzenkandidaten (lead candidate), a process which the EP swore that it would uphold, was left completely broken by the selection. It also served as a reminder that the “election” of the President of the EC is, if we rigorous in our analysis, a nomination by the European Council (hereinafter “ECON”) where the EP has veto power but is highly unlikely to use it. In fact, in a remarkable twist of fate, the ECON ended not only choosing the President of the EC but, arguably, also the President of the EP[i]. Even though there are some positive aspects that we should point out, such as the fact that the new EC will be more gender-balanced, that is certainly not enough to counterbalance the fact that no European citizen cast a vote thinking of, let alone desiring, the coming to pass of the current scenario.

2. Indeed, in a purely result-oriented perspective, the new Commission may go on to do a stellar job, thereby acquiring a high degree of output legitimacy. The College of Commissioners 2019-2024 possesses some worthy names, including two former lead candidates in Vice-Presidents Frans Timmermans and Margrethe Vestager[ii]. However, in terms of input legitimacy, the choice and the procedure leading to the current executive, does not strengthen the EU in any manner. Thereby, and until there is a broader reform of the European electoral process, it is necessary to search for other manners to widen the EU’s legitimacy.

3. One possibility would be to grant the EP, the Institution that probably has the highest degree of input legitimacy, the right to propose new legislation. This is a possibility that the Author has been defending for quite some time and now, it appears, that we may have some developments sooner, rather than later.

4. Von der Leyen won confirmation in the EP by a razor-thin majority of 383 MEPs (she needed 374). While confirming von der Leyen meant that the EP had to go back on its promise to only accept a lead candidate, and indeed, the ECON ended up distributing positions, more or less as it saw fit, the new President of the EC had to make some promises to ensure confirmation, since for a moment it did not seem like a certainty. In the end, maybe due to the national leaders’ influence on MEPs or maybe because said MEPs did not wish to create a constitutional crisis, they did confirm the ECON’s choice. Nevertheless, it came at the cost of several commitments, promises and reassurances. In fact, absent those it is not clear if the support of several MEPs from groups like S&D and Renew Europe would have been secured, and without those, there would be no majority for confirmation.

5. There is a possibility of having new developments on this front. In her opening statement in the European Parliament Plenary Session, the new President of the European Commission, delivered one of the abovementioned promises, namely that if elected, she would support a right of initiative for the European Parliament[iii]. The question is: how can she deliver on it? From a constitutional framework we can point out two possible solutions: a) amending the Constitutional Treaties to grant the EP the right to propose legislation or; b) adopting a new Interinstitutional Agreement under Article 295 TFEU.

6. Solution A is our preferred path, but it is a solution that can only be applied long-term. Amendments to the Constitutional Treaties are the result of a long and drawn out procedure, preceded by multiple-year long discussions between European Institutions, Member-States and other relevant stakeholders. Even then, they can fail and, in fact, in the current political climate, one could even argue that they might be likely to do so, due to opposition of a number of Member-States or even by failing to secure a majority in a referendum[iv]. The undertaking is such that, when it happens (and eventually it must), a major revamp of European constitutional law is expected, so it will not be to “just” grant the EP right of initiative.

7. With the abovementioned in mind, and while we wait for the right moment for the constitutional amendments there are other shorter-term options. Namely, through a new Interinstitutional Agreement adopted under Article 295 TFEU. The speech is not big on details and, in fact, for now, President of the EC, only specified that when Parliament adopts Resolutions requesting the Commission to submit a legislative proposal, her Commission pledges to respond with a “legislative act in full respect of the proportionality, subsidiarity, and better law-making principles”.

8. The wording of the specific compromise is not exactly in line with the idea of being in favour of the EP having a full right to propose legislation. In fact, the only difference from the current framework, per the Interinstitutional Agreement in force, is that the EC would waive its right to not submit a proposal after it was called upon by the EP to do so. Even then, this would not be a full waiver, as it seems that the Commission would still consider whether proposing legislation would comply with the proportionality, subsidiarity, and better law-making principles.

9. Another, and more interesting option, would be for the Parliament to adopt a Resolution containing a proposal for the content and text of the legislative act. The EC would then pledge to copy said Resolution into a formal proposal, absent amendments. In this scenario, the EP would formally “borrow” the right of initiative of the EC and, in practice, gain an indirect right of initiative without the need to amend the Constitutional Treaties.

10. One could argue that doing so would weaken the EC and, potentially, hinder its constitutional imperative to act as the guardian of the Treaties. To avoid this, one possibility could be to implement safeguards akin to in citizen’s initiative in the EU. Thereby, the EC would have the right to refuse to convert the Resolution from the EP into a legislative act when it: i) manifestly falls outside the framework of the Commission’s powers to submit a proposal for a legal Act of the Union for the purpose of implementing the Treaties; ii) is manifestly abusive, frivolous or vexatious; or iii) is manifestly contrary to the values of the Union as set out in Article 2 TEU.

[i] As a result of the negotiation necessary for distributing positions between Member-States and political parties.

[ii] One could argue that, input legitimacy-wise, both these names would be in a better position than von der Leyen to take the role as President of the EC.

[iii] See, “Opening Statement in the European Parliament Plenary Session by Ursula von der Leyen, Candidate for President of the European Commission”, European Commission, accessed July 17, 2019, http://europa.eu/rapid/press-release_SPEECH-19-4230_en.htm.

[iv] The European Constitution is one notable example.

Pictures credits: by aymane jdidi.

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