Editorial of January 2023

By Editorial Team 

Checks and balances in the EU’s current context – how to address new and old affections to its institutional functioning?

In the past weeks the European news have been marred by headlines exposing a corruption scandal concerning a supposed bribery of EU Officials. Among them, European Parliament Vice-President Eva Kaili was arrested in the context of a Belgium investigation, demanding a quick response from this EU institution. The President of the European Parliament, Roberta Metsola, addressed the issue, underlining that “open, free, democratic societies are under attack”, leading to Ms. Kaili suspension from her duties of Vice-President. And, in the follow-up, on December 15, a pack of reform measures was announced to be implemented in the year of 2023. It relates to the reinforcement of European Parliament protection systems of whistleblowers, the prohibition of non-official groups of friendship, the revision of the ways to scrutinize how MEPs follow their code of conduct and the exhaustive analysis how they interact with third countries.

In addition these announced concrete measures, a wider and deeper reflection is needed to understand which checks and balances act within the EU institutional core, namely: i) which principles guide the EU institutional system’s functioning and which is its legitimacy source?; ii) why it is mentioned an institutional balance and not a separation of powers; iii) in which way that sui generis institutional setting ensures a checks and balances system; and iv) in which extent the transparency principle can be compatible with EU’s decision-making process efficacy?

The EU institutional structure was influenced by the need of promoting a balance between several legitimacies that are mobilised in its decision-making process, while pursuing its goals (Articles 1 and 2 TEU) and objectives (Article 3 of the TEU). The EU –  and its institutions, bodies and agencies – has to promote “an ever closer union among the peoples of Europe” (Article 1 TEU) while being “found on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights” (Article 2 TEU) and using the “appropriate means” within the competences “conferred upon it in the Treaties” (Article 3 TEU).[1]

The EU institutional framework cannot be explained by the separation of powers’ principle since it is not possible to clearly differentiate EU’s legislative function from its executive one, as the organic criteria cannot be implemented as it is usual in national legal orders[2] – and, in the latter decades, its institutional setting has become more complex as EU competences also have suffered a densification process. For this reason, several principles act within the EU institutional setting as its own checks and balances’ array while allowing to characterize the EU as an effective Union based on the rule of law: i) institutional balance; ii) sincere cooperation (in institutional relations); and iii) transparency.

The first principle – the one related with the institutional balance – was deducted from analysing in combination Article 13 (1) and (2) TEU: as long as the EU exercise of public power does not cope with a strict separation of powers, that exercise had to search other discursive dynamics to accommodate different legitimacies that are convoked. In fact, the legislative power is intrusted to the European Parliament, the Council and the European Commission, while the political function with non-legislative expression relies on the European Parliament and the European Council’s actions[3]. Furthermore, when discussing the executive power, Member States continue to play a prominent role due to their institutional and procedural autonomy [Article 291 (1) TFEU] that EU developed in order to meet one of its dearest objectives, i.e., its “decisions [being] taken […] as closely as possible to the citizen”.

Nowadays, the legal principle of institutional balance is acting as an instrument to sediment the EU as a Union of law since it regulates how EU institutions, bodies and agencies relate with each other, and deems that any action taken by a EU institution, body or agency has to comply with legal standards (to the “rule of the law”) and, in that sense, it cannot extrapolate its own competences as these were attributed by the Treaties. This means two legal-constitutional impositions deriving from this principle: i) each EU institution must act within its powers as defined by the Treaties; and ii) each EU institution must exercise its powers with due regard for the powers of the other institutions”[4].

These two constitutional conceptions also directly relate to the principle of sincere cooperation (in institutional relations). In fact, in wider terms, this principle steams from Article 4 (3) TEU, establishing a triangular complementary influence in the relations between the EU and its Member States: i) Member States have to loyally cooperate with the EU; ii) the latter has to relate with its Member States based on trustworthy interactions; and iii) Member States have to act with each other aiming at sincere and loyal cooperation. But as this principle is based on a general feature, it is also invoked to explain institutional relations within the EU framework, as it literally derives from Article 13 (2) TEU (which complies with previous ECJ’s jurisprudence, namely judgment European Parliament vs. Council[5]). With this approach, sincere cooperation also has an instrumental importance to the EU’s characterization as a Union of law as it allows a deepening of reciprocal trust between institutions, bodies and agencies as they feel compelled to act in a synergic and interdependent way, enhancing checks and balances within the EU institutional framework, deepening material dimension of a Union of law.

Lastly, transparency influences how EU can be perceived as a Union based on the rule of law: when it is politically proclaimed that all EU decisions must be taken as widely and participated as possible, transparency demands influenced the proclamation of an opening principle [Article 15 (1) TFUE] and the recognition of a fundamental right of access to documents (Article 42 CFREU). In fact, accordingly to the ECJ, “[t]he principle of transparency […] enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system[6].

So, besides the access to documents, this legal principle of transparency also comprises other dimensions, namely the decision-making process opening to new actors; the explicability of the organizational framework before the EU institutional array; and the access to institutional information, especially when the decision-making process is open to the influence of third parties (lobbying) – and those dimensions can doctrinally frame which measures can be taken to tackle these emerging issues.

In fact, the institutionalised intervention of third parties, holders of legitimate interests, in the EU decision-making processes also represents a path towards consensus. Therefore, it also represents the strengthening of democracy, insofar as consensus and its incessant search will be the first objectives pursued (at least ideally) by the democratic functioning of the institutional systems. Moreover, it will be a way to enrich the efficiency and quality of decisions. What is important is to regulate (as has been done) and institutionalise in a transparent manner and, as far as possible, integrated into a dynamic of checks-and-balances, such contributions from third parties (lobbying). The “contradiction” between the various interests expressed (in a transparent way) in the course of the decision processes is important, guaranteeing a better clarification of the decision makers and thus reinforcing transparency. It will also allow a better understanding of the dialectic of interests at stake. And – again citing the recent case involving a former Vice-president of the EP – if any attempt to influence decision-making processes is ordered and clearly defined, then there will no longer tend to be any equivocal “gray areas” in which illegitimate interests may or may not be at play. Anything that happens, in short, outside of transparent and institutionalized interventions will, therefore, be inadmissible.

However, the path toward the incessant empowerment of transparency and, therefore, democracy, is underway.  The institutionalization of lobbying is a good example that the EU has brought, which does not always exist in the internal legal systems of the Member-States.  It is clear that the case that now involves the EP (note, the only institution for which one votes directly; that institution which most replicates the procedures of formal, internal and State democracy) will be, above all, a mere “police case” and not exactly a case of possible dysfunction in the institutional functioning of the EU. And, the positive side that such a case reveals is that the control of the institutions and competent authorities, as well as the ordinary functioning of the defence mechanisms of the system, are active. Active enough to quickly put an end to (or at least expose) the pathology that was detected. This is, after all, a hopeful and positive example of the proper functioning of the Union.

[1] On this theme see Joana Covelo Abreu and Liliana Reis (eds.), Instituições, órgãos e organismos da União Europeia, Almedina, Coimbra, 2020.

[2] On this matter see ECJ judgment French Republic, Italian Republic and United Kingdom of Great Britain and Northern Ireland vs. Commission of the European Communities, 6 July 1982, joined cases 188 to 190/80, §4 and 6. According to the United Kingdom, by adopting the contested directive the Commission committed a breach of the very principles which govern the division of powers and responsibilities between the Community institutions. Accordingly, it would be clear from the Treaty provisions governing the institutions that all original law-making power is vested in the Council, whilst the Commission has only powers of surveillance and implementation. However, the ECJ decided that there was no basis for that argument in the Treaty provisions governing the institutions.

[3] On this theme see Maria Luísa Duarte, União Europeia. Estática e dinâmica da ordem jurídica eurocomunitária, Almedina, 2011, p. 137; and Tiago Sérgio Cabral, “A short guide on the legislative procedure in the European Union”, UNIO – EU Law Journal 6(1)2020.

[4] On this subject see Robert Schütze, Constitutionalism and the European Union, in Catherine Barnard and Steve Peers (eds.), European Union Law, Third Edition, Oxford University Press, 2020, p. 94.

[5] ECJ judgment European Parliament vs. Council, 30 March 1995, C-65/93.

[6] ECJ judgment Volker und Markus Schecke and others, 9 November 2010, C-92/09 and C-93/09, §68.

Picture credits: cottonbro studio on Pexels.com

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