THE COMMISSION PROPOSES, THE PARLIAMENT ADVISES, AND THE COUNCIL DECIDES. DO YOU AGREE?

“The focus in the future will be on the construction of a legitimate Constitutional order for Policy-making responsive to the desires of National governments and their citizens”.

(Moravscik and Nikolaidis, 1998)



Sequential treaties and treaty reforms - the Treaty of Paris in 1952(European Coal and Steel Community), the Treaty of 1957 (where the European Economic Community was established), the Single European Act in 1987, the Maastricht Treaty (which “gave birth” to the European Union), the Amsterdam Treaty (1999), the Nice Treaty in 2003 and the “Constitutional Treaty” which is not yet ratified - have given to the European Institutions the today’s form and power.
The European Union since the Treaty of Rome has more or less the same structure. The modern discipline (Simon Hix, 1999,p.12) dates from the end of the nineteenth century, when people such as Woodrow, Robert Michels, Knut Wicksell, Lord Bryce and Max Weber first developed tools and categories to analyze political institutions, including bureaucracies, governments, parliaments and political parties. The changes that have occurred aimed to the
improvement of the effectiveness of the Institutions. The Commission, the Parliament and the Council together with the European Court of Justice -established in the 1950s - hold the most significant power in the EU; the power of decision making. From the formation of this structure there were often spectacular battles between the Institutions; these resulted in co-changes to the legislature procedure and in today’s formation. As Simon Hix(1999)said “actors act upon their preferences in a rational way by pursuing strategy that is more likely to produce the outcome they want”(p.12).

Institutions for Europe

The classic description of the distribution of power between EU Institutions - the Commission proposes, the Parliament advises and the Council decides - does not apply in the modern form of the Union, simply because through the Treaties and Treaty reforms the legislature procedure became more complicated and more credential, though not perfect yet.
The legislative powers and impact of the EP “have grown dramatically since its inception and especially over the last twenty years” (Amie Kreppel,2002,p.4). The establishment of elections by the people as well as the substantial treaty revisions all included provisions to validate the legislature role of the EP.
The Commission, on the other hand, was always the most misunderstood institution and the main recipient of criticism. John McCormick(1996) argued that for some analysts, Brussels has become a codeword for some vague and threatening notion of government by bureaucracy, or “creeping federalism”(p.104). Nowadays nevertheless, the Commission has not as much power as in the past, and is being successively reduced while those of the others institutions increase.
Last but not least the Council becomes co-legislator in an increasing number of policy areas and obtains a growing political impact. Desmond Dinan (1999) argues that even though it is especially important for the Council to work closely with the EP, their relationship is far touchier than the Council-Commission relationship (p.241). The European Parliament always confronted the Council as the lighthouse of intergovernmentalism.
As the EC/EU has grown in size, as more complicated polity areas came into the agenda; different economical conditions, different national and ideological interests, different socio-political targets, and many more factors created a new Europe in which the Institutions have to obtain prosperity.

Contemporary Institutions

When the EP was established, and certainly for most of its half century story, its Members had no big chance to influence policy-making. It was the only institution that represented “the citizens of Europe” but could not do much to directly induce the EU policy process.
Successively treaties changed the balance in the decision-making process of the European Union. The Single European Act in 1987, the Maastricht (1993) and Amsterdam (1999) Treaties generated the legislative face of the Union. The Commission would no longer be the only Institution that could propose legislation, as much as the Council would no longer be the only Institution that could decide. Sequentially, one treaty to another the Institutions would be obliged to interact and work together to produce legislation. Amie Kreppel (2002) had characteristically said that the EP has evolved from an ideologically dogmatic, loosely organized chamber of debate to a frequently bipartisan and hierchically structured legislative body (p.8).
The EU Institutions generate five types of policies: macroeconomic, citizen, regulatory, expenditure and foreign. There are two main
processes for them to be established:

Ÿ through supranational processes, where the initiative belongs to the Commission and,
Ÿ through intergovernmental processes, where the Council is the leading executive and legislative body.

Comitology:

The Commission is not as free as most people think in shaping policy measures when implementing EU legislation. Due to Simon Hix (2005) in 1987 July a Council’s decision established the “comitology system” {(it was reformed on June 1999)-(1987/373/EEC), (1999/468/EC)}. Comitology means “the Council designed an elaborated system of committees composed of national governments officials who scrutinize the Commission’s implementing measures (p.52). Due to these proceedings the legislators can examine the Commission. This procedure created a new amalgamation where the governments exercised both legislative and executive role. The truth is that as the procedures are multiplied the autonomy of the Commission decreases. Since 1999 the Council has the final power to veto; this is a really powerful measure that in no way should be used in vain.
Due to the new circumstances, one would expect the Commission and the Council to be in constant conflict. Although, Dogan (1997, 2000) cited by Hix (2005) found that this was not always the case. As he presents, the 29 percent of all comitology procedures proposed by the Commission between 1987 and 1995 were under procedures where the Commission was not strong, and opposite to the Commission’s elocution about the Council’s antithesis to the advisory committee procedure, though the Council accepted 40 percent of the Commission’s propositions for use of this procedure.
By the time that the EP gained legislative powers, the Maastricht Treaty gave a new turn to an already intricate issue. Dinan (1999) had mentioned that till the Treaty of the EU, the EP had no reason to be involved in the procedure (p.229). The 1999 Decision was an attempt of the Council to eliminate any concern of the Commission and the EP; Nugent (2003) characteristically wrote that “prior to the 1999 decision there had been frequent disputes between the Council on the one hand and the Commission on the other over the nature and application of the procedures” (p.136).
The issue is that despite of more or less active involvement of the Council and the EP in the comitology procedure, the Commission’s freedom in shaping the policies, independently of what the other institutions intentions are, is diminished.

Legislative procedures

The guidelines of the EU legislative process have changed substantially since the Treaty of 1957(Rome) established that legislation would be adopted through interaction between the Council, the Commission and the European Parliament. Europe is now more democratic than in the past, but still far from being deeply and true democratic. To reach this point one of the major issues was the re-distribution of power between the Institutions. Through the treaties there has been created a legislative procedure where the Institutions interact and generate the European engine with new policies. Each individual article would be treated differently and in a specific procedure.
The legislative procedure contains four main different types of interaction:

Ÿ the consultation
Ÿ the co-operation
Ÿ the co-decision
Ÿ and the assent.


Desmond Dinan (2004) wrote that on the Maastricht treaty, the EP won another dramatic extension of its legislature role, the co-decision procedure (p.29). This is the latest part of legislation with which the EP acquired legislative authority.

Consultation procedure:

In the Consultation procedure the Commission proposals are passed from the EP for an opinion. The EP may suggest alterations, but the true power of this level is the power of delay. Since the 1980 and after the “Isoglucose Case”, the European Court of Justice ruled that the Council would not act legally if adopted a proposal of the Commission without receiving an opinion of the EP. The ECJ gave to the Parliament significant power after this decision; the de facto power of delay. Since then, the threat of the delay would always have a considerable role in the decision making process.
A characteristic weakness though of this procedure was that the EP was not consulted in all areas. The scenery changed after the Single European Act by initiating the co-operation procedure.


Co-operation procedure:

The SEA enriched the legislative process with the co-operation procedure; due this the Council required Parliamentary agreement in a small number of cases. The Council’s ability to decide was lessen in contrary with the EPs ability to advice. The EP would no longer be spectator in the legislature procedure.
The co-operation procedure consists of two readings: the first is open-ended but the second has a three month deadline which can be extended by one month. Jeremy Richardson (1996) notices that the crucial stage of this procedure is undoubtedly the “common position” (p.98). Due this, if the common position between the Council and the Commission differed markedly from the text considered by the Parliament at the first reading, then the EP should be re-consulted. The common position was the main factor of the co-operation procedure, the Article 146(b) of the SEA clearly defines that both the Council and the Commission should justify to the Parliament the common position they came up with. Though the EP at it second reading has the ability to amend the common position or even reject it by an absolute majority voting. If this happens the Council has to negotiate with the EP in a Conciliation procedure. As Desmon Dinan(1999) mentions, originally the new procedure applied to ten EC Treaty articles, most dealing with the Single market, though the Treaty of Amsterdam virtually abolished it in favor of the Co-decision procedure. After all according to the Prag Report the co-operation procedure was a preparatory stage for the co-decision procedure, where the EP would be enriched with equal legislative power with the Council.
Tsembelis and his coauthors cited by Hix(1999, p.104), consequently argue that the Commission and the EP can influence policy outcomes by proposing amendments that are easier for the Council to accept than to reject.
The co-operation procedure nowadays applies in the field of monetary union because all the other issues are dealt with the co-decision procedure. The legislature process as it can be seen was evolving since 1987 and the classic description of distribution of power between the EU Institutions do not longer apply. Though nowadays, since the Amsterdam Treaty decision-making process has turned in a more teamwork process.

Co-decision procedure:

As defined in Article 251 of the EC Treaty, the co-decision procedure is the legislative procedure which is central to the Community's decision-making system (www.europa.int). The co-decision procedure has undoubtedly changed the set on EU policy making. The role of the European Parliament has significally changed. The present role of the Parliament does not resemble any of the past days; the EP finally obtained much of the power it always seek after.
Under this procedure the policy-making in the EU became much more complicated but interesting though. Through the process the Council and the EP may agree in the first reading and the new legislation is adopted. In case they do not agree in the second reading, then the EP has the opportunity by absolute majority to reject the proposal, which then falls. On the other hand in this stage the EP “may amend the Council’s common position by an absolute majority, in which case conciliation takes place between the Council and the EP” (Helen Wallace & William Wallace,2000,p.22).The conciliation committee is consisting of 25 members from the EP and 25 members of the Council, plus one non-voting representative of the Commission. Although, even the conciliation committee end up in a decision, the results must be approved in a third reading by both the EP and the Council; the EP must approve the third reading by an absolute majority of votes but the Council by Qualified Majority Voting (QMV) in a six weeks time. (This stage of the process is modified from first being established in the Maastricht treaty; under the first co-decision procedure, if the conciliation committee fails to reach an agreement then the Council could decide by QMV to adopt its common position, unless the EP voted by absolute majority to reject it). Finally if the conciliation committee has not reached an agreement, the proposal falls.
The co-operation between the two Institutions is really essential after the introduction of the co-decision procedure. Though it is not absolutely clear if the Council has more power from the EP or the opposite, especially after the reform of the co-decision procedure. Whereas it is a fact that by removing the power of the Council to act individually after the failure of the conciliation committee to reach an agreement, precluded the Council to manipulate the Parliament.
The significance of the European Parliament have changed since the Treaty of Amsterdam; the turnabout became obvious through the first fall of an EU legislation; the conciliation committee did not succeed in reaching agreement for the voice telephony because of the Council’s intransigence to make concession.

Assent:

A significant procedure in the field of distribution of power in the policy-making process of the EU is the assent procedure. Through this procedure the EP (only) has the power with a single vote to give its approval with absolute majority. The SEA initiated this procedure which applies only in specific issues such as international agreements, enlargement treaties and framework agreements on the structural funds. Stephen George and Ian Bache (2001) wrote that this was simply an extension of the consultation procedure in which the assent of the EP is required for a measure to be adopted (p.226).
With the assent procedure the circle of the Legislative procedure of the EU was concluded. The redistribution of powers between the Institutions came finally in a complete form; with the Nice Treaty last, the Union came through various changes that secures that the Legislative procedure is an operation of all three Institutions.


Institutions in interaction

Martin Westlake and David Galloway (2004) recently wrote that “the union’s Institutions are based on a separation of interests rather than a separation of powers. The European Parliament represents the popular interest, the Commission the general interest and the Council is the forum where the interests of the Member States can be advanced and defended”(p.9).
The distribution of power is now a really complicated issue which shares between the Commission, the Council and the European Parliament:

The Commission

The European Commission composed of 25 commissioners and 36 directorates-general is the main executive arm of EU and stand in the heart of the system. It is responsible for:

Ÿ initiating policy proposals,
Ÿ monitoring the implementation of proposals as soon as they have been adopted.
Among other issues, the Amsterdam Treaty revised the directive for the Committees. Some of the changes that have been occurred, were the above:
Ÿ Specific criteria to determine the choice of the committees were specified
Ÿ the procedure became more transparent and,
Ÿ The process was simplified.
Furthermore, the commission “regardless of the legal and political limits that subsidiary imposes, jealously guards its right to propose legislation” (Desmond Dinan,1999,p.224). Main argument in supporting this principle is that the Commission and only can shield EU’s collective interest and prosperity.
Through the legislation procedure the Commission is in conflict with the Council, and often tries to “alter Council’s acts with its implementing legislation” (Desmond Dinan,1999,p.228).Though, even if the Commission is the mainly responsible in proposing legislation, the Council and the Parliament have the right to notify the Commission to look through an issue and create proposals for new laws and policies (the Council under Article 208 of the TEC and the EP under Article 192);. The Council after all, “does not have a totally free hand in what it does”(Neil Nugent,2003,p.126) but neither the Council nor the EP can in initiate a draft proposal themselves.


Under these new circumstances the Commission changed method in approaching the Parliament. A number of practical measures were decided, the most notable (Richard Corbett,2001, p.83) being an administrative reorganization whereby each member of the Commission would appoint a parliamentary “attaché” among the members of his/her cabinet.
The Council finally, apart from the sharing of some of his power with the other Institutions has to take under deep consideration other factors such as the Member States, regional and local authorities, sectional groups, private firms and interests.

The Council

The Councils undertakes both executive and legislative functions; it sets the medium and the long term agenda, and is the dominant chamber in the EU legislative process due to Simon Hix (1999,p.7). The Members States in various cases are trying to impugn the legal base of the Commission either for difference of thesis or for political reasons; there exactly lies the use of the Council.
The cooperation of the Council with the other two Institutions is at some times a one way road; this depends on the policy areas and the type of decisions is needed to be made. The Article 208 of the EU Treaty enriched the Council’s policy initiating role with four factors (Neil Nugent,2003,p.152):

1) The adoption by the Council of an increasingly number of opinion, agreements, resolutions and recommendations. Even though these are not legal texts, they have political weight and are designed to put pressure to the Commission to come up with legislative proposals.
2) The Union’s entry into new political areas where the Treaties cannot act upon. There, only the Council can act.
3) The Councils has been transformed in a well organized mechanism with a strong network, where new policies can be initiated.
4) The Member States are willing to cooperate in spheres where the EU law cannot act with legal agreements. Those agreements are not necessary to be generated by the Commission.
It is also a fact that the pillar one is the chamber were the Council can act less independently in legislation issues. There are two significant reasons for this:

i. In the legislation procedure, it is the Commission that makes the proposals with which the Council can work with, and,
ii. the TEU upgraded the EP in co-legislator with the Council, in the areas it is applied.
The new procedure of the TEU has applied in “half of all directives -the most important legislative measures- since the entry into force of the Amsterdam Treaty”(Neil Nugent,2003,p.152).
In 2001 the Council adopted 137 regulations, 27 decisions and 22 directives on its own, and 23 directives, 13 regulations and 3 decisions through the co-decision procedure together with the EP.

The European Parliament

The EP has numerous powers lying on the legislative procedure. It is the Institution that gained the most new abilities through the reform of the treaties. Some of its powers are to consult, amend, delay, veto and co-decide. The EP also has the right to examine the exercise of executive powers of the Commission and the Council. After all, with all these new elements the modern EP does not really remind the Parliamentary Assembly of the past.
The TEU formally gave to the EP equal to the Council’s authority to submit legislative proposals to the Commission (article 192, former Article 138b, TEC). Nevertheless, even though the Commission is not obliged to put forward a proposal of the EP, after 1995 it agreed to take great account of them.
Following the Treaties the EP has several new opportunities to influence EU legislation:

Ÿ It can influence the Commission in policy-making discussions and propose policy initiatives during the discussions procedure.
Ÿ The other way to initiate legislation ideas is under Article 192 TEC which defines that “The European Parliament may, acting by majority of its members, request the Commission to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing this Treaty”(TEC).
Ÿ Third, the annual budgetary cycle provides opportunities to exercise legislative influence (Neil Nugent,12003,p.197)
Ÿ And finally, most important, the EP’s legislative power to contribute in the legislative process through: Consultation - Co operation - Co decision and Assent procedures.
The European Parliament under the new legislative power it gained, definitely left back its sole advisor role. The majority of the MEPs though argue that their power should be equal to the National Parliaments, and so they are fighting for even more. Main argument is that a strong EP will give more credentials for EU in the peoples minds.

Conclusion

It is obvious from the above that the EU after the Amsterdam Treaty
does not have a unique
legislature vehicle.
The Treaties have created a process where all three Institutions interact. In certain areas “the Council wields ultimate legislature power, with the Parliament acting in advisory role” (Martin Westlake and David Galloway,2004,p12).
During the last twenty years endless official and unofficial Meetings were debating whether the legislative procedure should change. The today’s form vindicated all those who believed in a better sharing of the powers. The Commission is not the only Institution that can propose as the Council is not the only that decides. Europe is ready to accept this changing and Europeans are ready for even bigger changes; those changes that will bring Europe closer to people.
The European Union needs all these changes that will create a more powerful image. Then it might gain peoples minds and who knows even peoples hearts.

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