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The existing procedural and substantive constraints on the making of Community rules are well known,[3] as are the difficulties which beset the present regime. The focus of the analysis within this section will, therefore, be upon proposals for change in the legislative process, and what we can learn from these proposals more generally about the problems of democracy and legitimacy within the Community.
That there is room for improvement is readily apparent from the documentation produced by the major Community institutions themselves and the Reflection Group in the run up to the 1996 Intergovernmental Conference.[4] One of the primary themes which permeates these reports is the need to enhance the legitimacy of the Community, both in social and in democratic terms. While it is clear, as will be seen, that the meaning given to these concepts differs in the reports of the differing institutions, and also within each particular report, this should not serve to mask the general nature of the concern about improving the way in which the Community goes about making its rules. These reports also serve a useful function as indicators of the direction of any future changes in EC rulemaking.
Four related themes which are of relevance recur in these documents: the necessity for the preservation of the institutional balance within the Community; the retention of the Commission's sole right of legislative initiative; the need to simplify the existing complex provisions for the making of legislation; and the problems flowing from the Union's involvement in the fields of foreign and security policy, and justice and home affairs. These will be considered in turn.
The desire to preserve some form of institutional balance within the Community is apparent throughout the Report of the Reflection Group and those of the major institutions.
For the Reflection Group[5] "improving democracy in the Union means both fair representation in each of the institutions, and enhancing the role of the European Parliament, within the existing institutional balance, and the role of the national parliaments". The same theme recurs in the main body of the Report. In the section concerning "An Efficient and Democratic Union"[6] we are told that the aims of the 1996 reforms must be to enable the Union to operate according to the criteria of efficiency, solidarity, transparency and subsidiarity.[7] Any reform of the institutions must, however, observe "the overall institutional balance, in accordance with the specific character of the European Union".[8] The European Council is accorded pride of place within this institutional balance. Its role is seen as essential to the Union as the "ultimate political impulse and the highest expression of the Union's political will and of its strategic policy formulation".[9] Democracy is then to be thought of in relation to all the Community institutions and the institutional balance which exists between them.
For the Council, "democratic legitimacy must be the expression of the Union's institutional system as a whole", and not merely a concept which is thought of only in relation to the European Parliament.[10] This sentiment is unsurprising, coming as it does from the Council. It is complemented by a vision of the way in which the Council contributes to the democratic legitimacy of the system: this is achieved by the fact that each of its members is politically responsible to its national parliament for the positions adopted at Community level.[11]
The Commission places a similar emphasis on the idea of institutional balance and defends its own central role within that balance. Thus we are told that the "Union is underpinned by a complex and novel institutional balance", which relies "primarily on the interaction and cooperation between the European Parliament, the Council and the Commission".[12] The emphasis on institutional balance, and on the differing democratic roles played by the various institutions, is reinforced throughout the Commission's Report. Thus we are told that the signatories of the TEU sought to respond to the greater requirement for legitimacy which resulted from the increase in the responsibilities conferred on the Union, by provisions designed to ensure that the Member States and their peoples were better represented in the institutions.[13] The Commission sees its own (democratic) legitimacy as being enhanced by the new approval procedure introduced by the TEU; and because its exclusive right of legislative initiative was confirmed on the understanding that "it is answerable for how it exercises that right".[14] For the Commission then, maintenance of the "equilibrium of the institutional triangle" is an essential facet of any discussion of legitimacy in the Community.[15]
The preservation of institutional balance within the Community is also a feature of the Report of the European Parliament. It begins its discussion of "Stronger and More Democratic Union Institutions" by stating that "the 1996 Conference should primarily concentrate not on transferring new powers to the EU institutions, but on clarifying their respective roles, and on achieving an appropriate balance between them".[16] Not surprisingly, the EP stresses its own democratic credentials and argues for equal status with the Council in all fields of legislative and budgetary competence.[17] However, in many respects the EP's Report is less radical than its previous discussions of institutional reform, and the EP is more willing to accept certain key features which have characterised the Community, such as the Commission's right of legislative initiative, than hitherto. In short, while the EP still believes that it has the strongest direct democratic credentials, its Report indicates an acceptance of the idea of institutional balance.
The second major theme of relevance to the current inquiry is the preservation of the Commission's right of legislative initiative. The Report of the Reflection Group puts the point firmly, stating, in relation to the exclusive right of legislative initiative, that,[18]
The Group considers that the maintenance of the Commission's monopoly of initiative is a fundamental aspect of the institutional balance of the Community. It will be exercised without prejudice to the right of request under the Treaty and the possible inclusion of a right of reply.
That the Commission should be of like mind on this issue goes without saying. It has always regarded the retention of its right of legislative initiative as crucial to its overall function in the Community, and has firmly resisted pressure for change from the European Parliament. Its Report for the 1996 IGC is in the same vein.[19]
The Council does not explicitly deal with the issue, save for the observation that the independence of the Commission vis-a-vis the other institutions is an essential element in the institutional balance.[20] It is, however, quite clear that the Council is opposed to any such diminution of the Commission's power in this respect. This is in part because the Council itself already has a de facto indirect route to initiate legislation, through the use of Article 152. It is in part because the principal beneficiary of any formal change would be the European Parliament, with a consequential increase in its power vis-a-vis the Council.
What is more surprising is that the EP does not press for its own independent right of legislative initiative. It has done so on a number of occasions when revision of the Treaty has been considered, most recently in the negotiations leading to the TEU. It has not, however, pressed the point in the present round of Treaty negotiations. This is readily apparent from the fact that an independent right of legislative initiative does not appear on its own 'shopping list' for the 1996 IGC.[21] It is also evidenced by the EP's observations on the Commission, stating that "the Commission's role and independence should be reasserted, in particular by maintaining its right of initiative, accompanied by the changes already provided for in the Treaty".[22]
The rationale for the EP's decision not to press on this issue is almost certainly political. It probably felt, correctly, that its chances of success were very slim and that failure on this front might prejudice other gains which it hoped to obtain from the 1996 IGC.
Moreover, it might well have felt that it was better to approach the issue of legislative initiative indirectly rather than directly. It has in fact done so, given that one item which is on its shopping list is for a revision of Article 138b. This Article presently allows the EP to request the Commission to submit any proposal on a matter on which the EP believes that a Community act is required. It is well known that the EP has, on occasion, been frustrated by the Commission's failure to respond to such requests. Hence the rationale for the EP's proposal, that Article 138b should be amended to require the Commission to respond to the EP's initiatives.[23] The addition of such a duty would clearly strengthen the EP's indirect power of legislative initiation considerably.
The response of the other institutions to this suggestion can be characterised as non-committal, but not dismissive. Thus the Reflection Group states that while the general feeling was that the right of request under Article 138b was broadly sufficient, some members were of the opinion that there should be a duty on the Commission to respond.[24] Even the Commission itself is mindful of the need to tread carefully on this issue, as indicated by the Code of Conduct which it has concluded with the EP. Under this Code the Commission will take "the greatest possible account" of the EP's requests made pursuant to Article 138b.[25]
The third of the themes from the reports which is relevant to our present inquiry concerns reform of the legislative procedures themselves. There is a general consensus among the reports that the existing array of legislative procedures, combined with differing voting rules, is unduly complex. It is not possible, within the limits of this paper, to deal with all aspects of this issue. What can be conveyed is the general line of thinking which is emerging.
The clearest recommendations are made by the EP. It wishes, as we have already seen, to have co-equal legislative status with the Council. The practical ramifications of this emerge from the EP's detailed proposals. There should, in its view, be only three procedures: assent, co-decision and consultation.[26] The assent procedure is to be restricted to Treaty revision, international agreements, enlargement of the Community and adjustments to the level of own resources. Consultation would apply in the fields of common foreign and security policy. In all other areas co-decision would operate. There are also suggestions for the simplification of the co-decision procedure.[27] The thrust of the suggestions made by the EP is, then, for the co-decision procedure to be the method for the passage of legislation throughout the areas covered by the EC, subject to those limited areas in which the assent procedure would continue to apply.
The Commission's Report has considerably more in the way of analysis of the legislative process. It highlights the three major weaknesses which currently exist: the divergence between the legislative and the budgetary procedures; the complexity of the system; and the lack of logic in the choice of the various procedures and the different fields of activity to which they apply.[28] While its report is somewhat ambiguous as to reform, a later report makes it clear that the Commission favours an approach akin to that advocated by the EP:[29] the co-decision procedure should be simplified, and, subject to certain qualifications, be used for all Community legislation; assent should be utilised for constitutional areas (new entrants, international agreements and the like); and consultation should be employed in other areas. The co-operation procedure would be abolished.
The Council's Report is, at might be expected, more equivocal. The Council accepts that the increase in the number of legislative procedures has made matters more complex,[30] but there are no concrete proposals for simplification of the decision-making process, and no acceptance of the idea that the EP should, generally, have an equal status in the legislative process with the Council itself.
Given the degree of equivocation by the Council, the Report of the Reflection Group is particularly interesting on this issue. This is especially so given that the Group, because of its origins and composition, has an intergovernmental orientation. Notwithstanding this, its Report goes considerably further in sketching concrete proposals for improvements in the legislative process then either the Council or the Commission. Moreover, its Report adopts the same general lines of reasoning as that of the EP, although shorn of some of the rhetoric employed by the EP itself. Thus the Reflection Group is in favour of reducing the decisionmaking procedures to three, assent, co-decision and consultation, albeit with the caveat that this should not change the existing institutional balance.[31] Some, but not all, members of the Group proposed that the assent procedure should apply in approximately the same areas as advocated by the EP.[32] A large majority of the Group were in favour of extending the co-decision procedure, and most would do so by extending it to all legislation adopted by the Council by qualified majority.[33] While the Reflection Group refrains from explicitly formally endorsing the principle, advanced by the EP, that the EP should have an equal status in the legislative process with the Council, its recommendations on this issue come close to the substantive conclusions desired by the EP.
The final theme which is apparent in the reports of all the institutions and the Reflection Group concerns the problems flowing from the Union's involvement in the fields of foreign and security policy, and justice and home affairs. Space precludes detailed consideration of this issue. Suffice it to say for the present that the reports reveal both institutional and substantive tensions flowing from the introduction of these competences by the TEU. In institutional terms, all of the reports, and particularly that of the Commission, point to the fact that the procedures themselves which operate in these areas have simply not been functioning well. In substantive terms, the tension flows from the very fact that the EU has become involved in these areas at all. This, in itself, has partially fuelled the debate about legitimacy within the EU, since these new responsibilities were classically the preserve of the nation state.
What conclusions can we then draw about the future shape of the Community's legislative process in the light of the documentary reports discussed above?
The first conclusion which is apparent from the reports which have been submitted to the IGC is that, for the present at least, the Community is not going to develop institutionally along the lines of a nation state. This is apparent, in general terms, from numerous references in all of the institutional reports and that of the Reflection Group. It is also evidenced, more specifically, by the fact that the EP is not going to have an independent right of legislative initiative. The nature of the latter point must be clarified in order to avoid confusion. It can be accepted that the powers of national parliaments vary considerably and that the extent to which they partake in the initiation of legislation differs in different countries. This does not deny the force of the point being made here which is a limited, but important one. One of the arguments which have been made concerning democracy within the Community is that the EP should have this species of power, because national parliaments often are thus empowered, and because the EP 'deserves' this power as compared with the unelected Commission. Some, albeit not all, of the discussion of democratic deficit within the EC has focused on this issue. It is clear from the reports considered above that this is not going to happen in the present round of Treaty revision.
The second conclusion should be seen as balancing the first: if the Community is not going to proceed by way of a paradigm based upon the domestic nation state, it is even less plausible than it was hitherto to regard it as wholly intergovernmental in nature. Once again the nature of this conclusion must be clarified. It can be readily acknowledged that there are certain features of both the Community and the Union which are intergovernmental in nature. These are especially pronounced in relation to decisionmaking under the second and third pillars, but are also to be found as features within the Community itself, most notably in the role played by the European Council. It is, however, also generally accepted that there are many aspects of the Community which do not fit within any standard intergovernmental paradigm. In institutional terms, there is the power of the Commission and the growing importance of the EP, and neither of them operate on an intergovernmental agenda. In legal terms there are doctrines such as supremacy, direct effect, pre-emption and the like. While in political terms, there is the fact that certain of the Member States themselves may be in favour of changes which push the Community in a more federal direction and are willing to use their position in the Council and the European Council to press for such developments.
The reports of the institutions in the run up to the IGC, and that of the Reflection Group itself, cast interesting light on this issue in a manner which can be easily lost sight of amidst the detailed proposals contained in these various documents. If one stands back from this detail the theme which occupies centre stage is the concern with democracy and legitimacy in the EC/EU. The meaning given to these concepts differs, as we have already seen, in the various institutional reports. Yet the very fact that these are regarded as central concerns at all is significant. We do not use this language when we think of other Treaty arrangements between states. We may think or speak of the equality of states within such a pact, but we do not employ the language of legitimacy and democracy. That we do so in this context bears testimony to the acceptance by the major players that the Community requires a form of legitimation which can no longer be found purely in the traditional language of state agreement and state control. This is apparent even in those reports which one would naturally expect to be intergovernmental in nature, those of the Council and the Reflection Group. The Council's Report does, as we have seen, attempt to cloak with democratic legitimacy its own role in Community decisionmaking. Yet the justificatory argument employed is not simply a crude form of intergovernmentalism. The Council's argument is premised on the idea of institutional balance, and its Report attempts to delineate and legitimate its own democratic role within that balance. This is equally apparent in the Report of the Reflection Group. Thus we are told at the inception of the Report that the "Union is not and does not want to be a super state. Yet it is far more than a market. It is a unique design based on common values".[34] The Reflection Group recognises that the concerns about democracy and legitimacy are themselves in part indicative of the stage of development reached by the Union and that these must be addressed if the Union is to move forward.
[3] Craig and de Burca, EC Law: Text, Cases and Materials (1995), Chap. 3.
[4] For a general analysis of these reports see, de Burca, "The Quest for Legitimacy in the European Union" (1996) 59 M.L.R. 349.
[5] Report of the Reflection Group, SN 520/95 December 1995, p. vii.
[6] Ibid. pp. 23-39.
[7] Ibid. para. 75.
[8] Ibid. para. 79.
[9] Ibid. para. 97. See also, p. vi.
[10] Report of the Council on the Functioning of the Treaty on European Union, Brussels 1995, para. 16.
[11] Ibid. para. 18.
[12] Report on the Operation of the Treaty on European Union, SEC(95) 731, May 1995, para. 18(1).
[13] Ibid. para. 18(2).
[14] Ibid. paras. 23, 39.
[15] Ibid. para. 39.
[16] Resolution of the European Parliament on the Functioning of the Treaty on European Union with a View to the 1996 Intergovernmental Conference, 17 May 1995, para. 18.
[17] Ibid. para. 23(iii).
[18] Report of the Reflection Group, para. 109.
[19] Commission Report, paras. 23, 39.
[20] Report of the Council, para. 32.
[21] Resolution of the European Parliament, para. 23.
[22] Ibid. para. 21(i). Although it should be acknowledged that the EP does not speak explicitly in terms of the Commission retaining an exclusive right of initiative.
[23] Ibid. para. 23(vii).
[24] Report of the Reflection Group, para. 83.
[25] Commission Report, para. 31.
[26] Resolution of the European Parliament, para. 29.
[27] Ibid. para. 30.
[28] Report on the Operation of the TEU, para. 52.
[29] Scope of the Co-Decision Procedure, Commission Report under Article 189b(8), SEC(96) 1225/4, July 1996.
[30] Report of the Council, para. 26.
[31] Report of the Reflection Group, para. 84.
[32] Ibid. para. 85.
[33] Ibid. para. 86.
[34] Ibid. p. iii.