Is “synchronized swimming” the right approach for the EP (and for the Council) ?

by Emilio DE CAPITANI

Yesterday there was no political majority in the European Parliament to vote on the Juncker Commission 2015 Programme. Quite shocked Votewatch describe this “non event” as follows: As this vote has just shown, the European Commission President, Jean Claude Juncker, will have a hard time building majorities in the European Parliament: the EU legislative was unable to reach a common position with regard to the plans put forward by the Executive for 2015. In a dramatic display of power play, the political groups voted down each other’s proposals one by one. The first text put to vote was the one proposed by the largest political group, the EPP. This was giving full backing to the Commission’s proposed legislative agenda for this year. The EPP, which is also the group of Jean Claude Juncker, supported Commission’s plans to reduce the bureaucratic burdens and the introduction of mandatory impact assessments of all new legislation on SMEs. EPP also positioned itself strongly in favour of a comprehensive TTIP agreement (between the EU and the US). EPP’s document was, however, voted down by a combination of left and radical right opposition. The text proposed by the ALDE group didn’t stand a chance either. Then, the much more critical resolutions proposed by the Greens/EFA and the S&D groups seemed to gain momentum, as some of their amendments mustered a majority, particularly calls against the allegedly proposed plans of watering down the social and environmental agenda, through cancelling certain EU laws or the TTIP. However, at the final vote these documents were rejected too by the other groups, which cancelled the victories on separate amendments. The same happened with the resolutions proposed by the remaining political families. This is a clear signal that, after the EU elections in May 2014 and the spitzenkandidaten process, the European Commission has become more political and that it will have a harder life in the Parliament.”.

However it think that this EP apparent “failure” should be seen also under a different perspective.

It is more than likely that the Juncker  Commission feels to be more “political” compared to the Barroso’s previous teams but it is also true that it has overestimated its new position in the legislator’s triangle. On the European Parliament side she should had been aware  that until now the support that it has received from the “grosse coalition” (EPP, SD and ALDE) was only on very generic (when not contradictory) objectives.

I think that the main error with the 2015 Programme has been to come before the European co-legislator by claiming that there would had been less new…legislation when the Treaty of Lisbon objectives have yet to be implemented. Less EU legislation could be a music for UK or NL but sounds very inappropriate in Strasbourg where there are several MEPS who still consider to have been elected to change the EU and not to preserve the existing one.  Moreover if limits have to be established it would be more appropropriate to do it on the Commission side as 9/10 of the EU binding acts adopted every year come out  from hundreds committees driven by the Commission in perfect (and very often opaque) complicity with the representatives of the Member States.

Coming back to the Commission’s  political programme for 2015 it still mirrors the general objectives already repeated since the electoral campaign without fleshing them out on concrete proposals. It would then have been illusory to expect from a new elected Parliament a support for an annual agenda which many MEPs during the plenary debate have considered in several aspects generic if not misleading.

A further Commission’s error has been to list between the legislative measures which should be withdrawn because obsolete also measures on which the negotiations between the European Parliament and the Council are still under way. By so doing the Commission was probably trying to show that its right of legislative initiative remain in full also during the legislative negotiations. However after more than 1.400 legislative codecisions it would had been naïve to think that the co-legislator (and notably the EP) would had accepted to be taken away by the Commission the chair on which he was sitting .

Furthermore this would be an over “generous” interpretation of the Commission right to “…alter its proposal at any time during the procedures leading to the adoption of a Union act” (art. 293.2 TFEU) The Treaty does not make reference to a Commission power of withdrawal but only to a power of amendment and only “As.long as the Council as not acted…”. By modifying its proposal can already heavily influence the balance of power in the Council which will require unanimity to overcome the Commission text. This Commission power to influence the majority in the Council may be justified to counterbalance the pressure of national governments in the Council but has no ground towards the European Parliament which derives is legitimacy from the vote of the EU citizens. The Juncker Commission to become again a sort of “Deus ex machina” as it was before the European direct elections is then quite misplaced.

So, the main error of the Commission move with the 2015 Programme has been to consider itself as if it were  already a  true European Government and only because of the success of the “spitzenkandidaten” procedure and of the support of the high ranks of  the political groups.

We are still very far from this situation and it has still to be proved that mirroring the nation state constitutional balance fits also with European “sui generis” legal order which has been proudly defended by the European Court of Justice. Clearly this will require some creativity from the EU political architects but the first signs are not very promising. Take the case of the recent inter institutional  negotiations to strengthen inter-institutional annual and multiannual programming . The main objective of this exercise should be “to set common objectives and ensure an even more rapid and efficient decision-making process, while preserving the quality of legislation”. This exercise takes as basis the art. 17(1) TEU according to which European Commission shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements.”  However according to a draft joint declaration (hopefully not yet adopted) the institutions should endeavour to establish a political framework by including a commitment to fast-track priority proposals.  In a European Union where “First reading agreements” have already become the rule thanks to the goodwill of the European Parliament the creation of an informal “urgency procedure” (not foreseen by the treaties) looks suspect even if feasible on the basis of “binding” interinstitutional agreements (art. 295 TFEU).

The point is that to preserve the institutional balance these agreements should be equally binding for all the parties involved which regrettably is not currently the case in the informal draft which are informally circulating.

A balanced agreement could, for instance, foresee that the Commission SHOULD submit a legislative proposal if so required by one of the the Co-legislator (or by a citizen’s initiative). It could also foresee that the European Parliament could ask the Council to vote on a given legislative proposal (a faculty which is since decades recognized to the Commission) as it already granted to the Council and to the Commission to ask for a urgent vote of the EP.  These innovations could improve the current situation where the Commission does not give the opportunity to a majority of MEPs to challenge the Council on a legislative proposal which could implement an EU objective. The agreement could also oblige the Council to vote (even if it could be a rejection) on texts which are pending since years such as the anti-discrimination Directive or the revision of the access to documents Regulation.

Regrettably no one of these possible improvements is currently debated so that the only possible outcome risk to be a further unbalance of the EP  position (*)

But these procedural machineries taken apart the real question is if  an European Union “family photo” at the beginning of the year, without knowing what the future proposals could cover, is not a political and moral hazard. As the experience has showed since the entry into force of the codecision procedure in 1994, interinstitutional agreements are meaningful when done on a case by case basis as the representatives of the EU Governments and ones of the  EU Citizens could have a different perspective when confronted on specific legislative choices  (and quite rightly so).

Under this perspective I do believe that the new envisaged procedural machinery is not in the interest of the European Parliament nor probably of the EU Member States. For these reasons the lively debate of this week and the failure to vote on the Commission programme is probably more a sign of true democracy than the reverse.

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(*) It remain a mistery why after the entry into force of a Treaty the EP management fight so hard to lose the powers he has obtained. In this specific case the latter is  already planning a new internal procedure which will empower a rather obscure internal body (the Conference of the Committee chairman) to  give priority to the legislative proposals agreed in the interinstitutional planning by inevitably slowing down the other proposals.

 

 

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