Executive–Legislative (Im)balance in the European Union 9781509930005, 9781509930036, 9781509930029

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EXECUTIVE–LEGISLATIVE (IM)BALANCE IN THE EUROPEAN UNION Ten years after the entry into force of the Lisbon Treaty, has executive predominance in EU-related matters disappeared? How have executive-legislative relations in the EU evolved over a crisis-ridden decade, from the financial and migration crises, to Brexit and the COVID-19 pandemic? The Lisbon Treaty could be expected to lead to the re-balancing of powers in favour of parliaments, for it significantly enhanced the roles of both the European Parliament and national parliaments. A decade later the contributions to this edited volume examine – for the first time in such an extensive breadth and from a multi-level and cross-policy p ­ erspective – whether this has actually materialised. They highlight that diverging tendencies may be observed, and that important variations over time have occurred, depending particularly on the occurrence of crises. As stated in the fascinating epilogue by Peter Lindseth (University of Connecticut School of Law), this is an ‘admirably coherent collective volume, whose contributions provide an excellent overview of key aspects of executive-legislative relations in the European system since the Treaty of Lisbon’. This edited volume will hence be of interest to both academics and practitioners interested in future reforms designed at the European and national levels to improve the EU’s democratic quality. Volume 6 in the series Parliamentary Democracy in Europe

Parliamentary Democracy in Europe The European Union is founded on the idea of ‘representative democracy’. Its citizens are directly represented in the European Parliament, but Union democracy is equally based on indirect forms of representation especially through the European Council and the Council – two Union institutions whose members will be democratically accountable to their national parliaments. The good functioning of the Union democracy assumes, therefore, the good functioning of the democratic institutions of each Member State. What is the role and relationship between the European and the national parliaments in the democratic functioning of the Union? Do they exercise distinct or complementary functions? Has the European Parliament adopted a structure similar to national parliaments; and how do national parliaments assume their ‘European’ functions? These questions have gained particular relevance in recent years. Not only has the Lisbon Treaty conferred new functions upon national parliaments, especially concerning the scrutiny on the compliance with the subsidiarity principle (the so called ‘Early Warning System’), the coordination of fiscal and economic policies at the European level has led to significant restrictions of national parliamentary powers. The new Hart Series on ‘Parliamentary Democracy in Europe’, encompassing both monographs and edited collections, aims to answer some of these questions. The series offers new insights into rules and conventions shaping parliaments and parliamentary democracy in Europe. Its aim is to provide a better understanding of the role parliaments are playing in European constitutional law and its idea of ‘representative democracy’. Series Editors Nicola Lupo Robert Schütze Interparliamentary Cooperation in the Composite European Constitution Edited by Nicola Lupo and Cristina Fasone The Italian Parliament in the European Union Edited by Nicola Lupo and Giovanni Piccirilli The Principle of Subsidiarity and its Enforcement in the EU Legal Order: The Role of National Parliaments in the Early Warning System Katarzyna Granat Parliamentary Oversight of the Executives: Tools and Procedure in Europe Elena Griglio The Internationalisation of Constitutional Law: A View from the Venice Commission Sergio Bartole

Executive–Legislative (Im)balance in the European Union

Edited by

Diane Fromage and

Anna Herranz-Surrallés

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © The editors and contributors severally 2020 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Fromage, Diane, editor.  |  Herranz-Surrallés, Anna, editor. Title: Executive–legislative (im)balance in the European Union / edited by Diane Fromage and Anna Herranz-Surrallés. Other titles: Executive-legislative imbalance in the European Union Description: Oxford, UK ; New York, NY : Hart Publishing, an imprint of Bloomsbury Publishing, 2020.  |  Series: Parliamentary democracy in Europe ; volume 6  |  Includes bibliographical references and index. Identifiers: LCCN 2020042227 (print)  |  LCCN 2020042228 (ebook)  |  ISBN 9781509930005 (hardback)  |  ISBN 9781509944514 (paperback)  |  ISBN 9781509930029 (pdf)  |  ISBN 9781509930012 (Epub) Subjects: LCSH: Delegation of powers—European Union countries.  |  Executive power—European Union countries.  |  Legislative power—European Union countries.  |  Council of the European Union.  |  European Commission.  |  European Parliament. Classification: LCC KJE5307 .E94 2020 (print)  |  LCC KJE5307 (ebook)  |  DDC 328.4/07456—dc23 LC record available at https://lccn.loc.gov/2020042227 LC ebook record available at https://lccn.loc.gov/2020042228 ISBN: HB: 978-1-50993-000-5 ePDF: 978-1-50993-002-9 ePub: 978-1-50993-001-2 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

ACKNOWLEDGEMENTS This edited volume is the result of a research initiative sponsored by the Centre for European Research in Maastricht (CERiM), an interfaculty project of Maastricht University and a Jean Monnet Centre of Excellence funded by the Erasmus+ Programme of the European Union. In mid-2017, together with Thomas Christiansen (LUISS, Rome) – whom we thank for his support in this initiative – we launched a call for papers on Challenges and Opportunities for EU Parliamentary Democracy: Brexit and beyond. We received an overwhelming number of interesting proposals, and soon realised that we would have to organise two workshops to be able to collaborate with a higher number of scholars coming from all over Europe. Consequently, one workshop focusing on Executive-Legislative (im)balance, and a second one addressing Brexit and democracy – which has since been the object of an edited volume published with Palgrave (2019) – could be organised in 2018 at the Campus of Maastricht University in Brussels. Next to excellent contributors, we were lucky to count on several practitioners, who generously agreed to act as discussants and whom we thank for accepting to spend some of their precious time with us. When those events took place, the European Union (EU) was arguably significantly different from what it has become today. To name but a few of these changes: the exit of the United Kingdom from the EU was still an uncertain prospect which seemed unthinkable to many of us; the EU had just started to recover from the Great Financial Crisis but was facing an acute migration crisis; and no one could have ever predicted anything like the COVID-19 pandemic, with the economic and social disruptions it has already triggered. These and other changes have made the analysis of the relationships between executive and legislative powers at the EU and the national levels, as well as in a multi-level perspective offered by this edited volume particularly relevant and necessary. Yet, it has also made it difficult due to its constantly evolving character. The authors of this book, the editors of this book series (Nicola Lupo and Robert Schütze), as well as all the staff from Hart publishing, have shown an outstanding level of flexibility and availability to cater for those changes, and we express our gratitude to them. Our student assistant, Jonah Thompson, was also very helpful in proofreading and formatting the chapters. We are further indebted to the editors of the series, and to Hart publishing, for supporting this project generally, and to CERiM and the Limburg University Fund (SWOL) for financially supporting the organisation of the workshop during which the chapters were originally presented. Maastricht and Paris, 26 September 2020

vi

CONTENTS Acknowledgements����������������������������������������������������������������������������������������������������������������������� v List of Contributors��������������������������������������������������������������������������������������������������������������������� ix List of Figures and Tables������������������������������������������������������������������������������������������������������������ xi Table of Cases����������������������������������������������������������������������������������������������������������������������������xiii Introduction: Executive–Legislative (Im)balance in the European Union�������������������������������� 1 Diane Fromage and Anna Herranz-Surrallés PART I EXECUTIVE–LEGISLATIVE RELATIONS FROM A MULTI-LEVEL PERSPECTIVE 1. Recalibration of Executive–Legislative Relations in the European Union: Strategies Inspired by the Trilemma of Democracy, Sovereignty and Integration������������ 19 Peter Bursens 2. The Anticipation Function of Interinstitutional Agreements: A Smooth Mechanism to Recalibrate Executive–Legislative Relations����������������������������� 35 Marco Urban 3. Divided Accountability of the Council and the European Council: The Challenge of Collective Parliamentary Oversight������������������������������������������������������� 51 Elena Griglio 4. Executive–Legislative Relations and Delegated Powers in the European Union: Continuous Recalibration?������������������������������������������������������������������������������������������������� 67 Thomas Christiansen and Sabina Lange PART II EXECUTIVE–LEGISLATIVE (IM)BALANCE WITHIN MEMBER STATES 5. The Implementation of EU Law in Member States and its Impact on the Relationship between Parliaments and Governments���������������������������������������������������������������������������� 87 Diane Fromage 6. National Strategies of EU Law Transposition: Does the Distinction between Legislative and Executive Measures Matter in Practice?������������������������������������������������� 103 Robert Zbíral and Jan Grinc

viii  Contents 7. Failed Constitutional Reforms and Silent Constitutional Transformations in Executive–Legislative Relations: The Case of Italy������������������������������������������������������ 121 Nicola Lupo 8. Short-Lived Reparliamentarisation? A Year of Efforts to ‘Take Back Control’ from the Executive in the Brexit House of Commons�������������������������������������������������������������� 137 Kathryn Wright PART III EXECUTIVE–LEGISLATIVE (IM)BALANCE AND VARIATIONS ACROSS POLICY AREAS 9. How the Debates on Trade Policy Helped Rebalance the Executive–Legislative Relationship in Favour of the European Parliament������������������������������������������������������� 161 Péter Márton 10. A Temporary Recalibration of Executive–Legislative Relations on EU Trade Agreements? The Case of National and Regional Parliaments on CETA and TTIP��������������������������������������������������������������� 179 Cristina Fasone and Maria Romaniello 11. Exploring Interaction between National Parliaments and the European Parliament in EU Trade Policy����������������������������������������������������������������������������������������� 195 Katharina L Meissner and Guri Rosén 12. The European Parliament’s Role in the Operation of Trade Agreements: Parliamentary Control and Executive–Legislative Balance in External Action������������ 209 Wolfgang Weiβ 13. Representative Democracy in Financial Crisis Governance: New Challenges in the EU Multi-level System����������������������������������������������������������������� 227 Claudia Wiesner 14. Towards the ‘Normalisation’ of Security? Executive–Legislative Relations in an Expanding EU Security and Defence Policy����������������������������������������������������������� 245 Anna Herranz-Surrallés 15. The Balance of Powers and the EU’s Common Foreign and Security Policy������������������ 263 Graham Butler 16. All Buzz, No Bite: The Parliamentarisation of the Area of Freedom, Security and Justice�������������������������������������������������������������������������������������� 285 Angela Tacea 17. Epilogue: Executives, Legislatures and the Semantics of EU Public Law: A Pandemic-Inflected Perspective����������������������������������������������������� 303 Peter L Lindseth Index����������������������������������������������������������������������������������������������������������������������������������������� 329

LIST OF CONTRIBUTORS Peter Bursens is Jean Monnet Chair and Professor of Political Science at the University of Antwerp (Belgium). Graham Butler is Associate Professor of Law at Aarhus University (Denmark). Thomas Christiansen is Professor of Political Science and European Integration at LUISS Guido Carli University, Rome (Italy). Cristina Fasone is Assistant Professor of Comparative Public Law at LUISS Guido Carli University (Italy) and Visiting Professor in Law at Nicolaus Copernicus University of Torun (Poland). Diane Fromage is Assistant Professor of European Law at Maastricht University (The Netherlands). Elena Griglio is Senior Parliamentary Official by the Italian Senate and Adjunct Professor at LUISS Guido Carli University (Italy). Jan Grinc is Senior Lecturer of Constitutional Law at the Faculty of Law of Charles University in Prague (Czech Republic). Anna Herranz-Surrallés is Associate Professor of International Relations at the Faculty of Arts and Social Sciences of Maastricht University (The Netherlands). Sabina Lange is Senior Lecturer in EU Governance at European Institute of Public Administration, Maastricht (The Netherlands) and Associate Professor in International Relations at the University of Ljubljana (Slovenia). Peter L Lindseth is Olimpiad S Ioffe Professor of International and Comparative Law at the University of Connecticut School of Law (US). Nicola Lupo is Full Professor of Public Law and Director of the Center for Parliamentary Studies at LUISS Guido Carli University, Rome (Italy). Péter Márton is Economic and Trade Policy Advisor at the New Zealand Mission to the EU in Brussels (Belgium). Katharina L Meissner is Lise-Meitner postdoc (project leader) at the Centre for European Integration Research (EIF), Department of Political Science, University of Vienna (Austria). Maria Romaniello holds a PhD from the IMT School for Advanced Studies Lucca (Italy). Guri Rosén is Associate Professor at Oslo Metropolitan University (Norway). Angela Tacea is FWO Postdoctoral Fellow at the Vrije Universiteit Brussel (Belgium).

x  List of Contributors Marco Urban is a PhD Researcher at the University of Lausanne (Switzerland). Wolfgang Weiß holds the Chair of Public Law, European and Public International Law at the German University of Administrative Sciences Speyer (Germany) and is Senior Fellow at the German Research Institute of Public Administration. Claudia Wiesner is Professor for Political Science and Jean Monnet Chair at Fulda University of Applied Sciences (Germany). Kathryn Wright is Senior Lecturer in Law at the University of York (UK). Robert Zbíral is Assistant Professor of Constitutional Law at Law Faculty of Masaryk University in Brno (Czech Republic).

LIST OF FIGURES AND TABLES Figures 1.1 1.2 1.3 1.4 3.1 3.2 11.1 11.2 14.1 14.2 14.3 16.1 16.2 16.3 16.4 16.5 17.1

The trilemma of integration, sovereignty and democracy�������������������������������������������23 Renationalisation to escape from the trilemma�������������������������������������������������������������24 Federalisation to escape from the trilemma�������������������������������������������������������������������26 Multi-level parliamentarisation to escape from the trilemma�������������������������������������27 The chain of accountability and delegation in national systems����������������������������������60 The chain of accountability and delegation linking the Council and the European Council to the two channels of parliamentary representation�����������61 Attendance of Commission representatives at INTA meetings, 2009–17 (based on INTA agendas)�������������������������������������������������������������������������������202 Trade Commissioner’s meetings with national parliaments, 2009–17���������������������205 Challenges in the integration-parliamentarisation nexus in EU security and defence policy��������������������������������������������������������������������������������250 Evolution of support for annual report on the implementation of the CSDP���������258 Voting results on the April 2019 Report on the European Defence Fund���������������258 The law-making activity in the AFSJ by type of procedure (1998–2017)�����������������291 Number of readings in the EP (1998–2017)�����������������������������������������������������������������294 Number of amendments in the EP weighted by the number of proposals (2004–17)������������������������������������������������������������������������295 Overall parliamentary opinions vs. AFSJ proposed acts��������������������������������������������299 Parliamentary opinions vs AFSJ proposed acts by policy sub-field��������������������������299 Rodrik’s trilemma applied to the EU�����������������������������������������������������������������������������311

Tables 4.1 4.2 4.3 5.1 6.1 6.2 6.3 6.4 6.5

Numbers of adopted legislative acts, implementing acts, implementing measures (RPS) and delegated acts (2010–18)������������������������������������68 Number of legislative acts with provisions for DA and number of paragraphs providing for DA (2010–18)����������������������������������������������������75 Vetoes to RPS measures (2007–September 2019) and objections to DA (2010–August 2019) by the Council and the EP�����������������������������������������������81 Existing models of transposition in the Member States�����������������������������������������������94 List of legal acts selected for analysis�����������������������������������������������������������������������������110 Strategies of transposition across the sample���������������������������������������������������������������114 Number of subjects consulted during drafting of executive acts/bills����������������������116 Length of explanatory notes (ratio to text of the transposing measure, in %)���������116 Length of the EU acts vs length of the transposing measures (change in %)����������117

xii  List of Figures and Tables 6.6 6.7 6.8 6.9 6.10 13.1 13.2 13.3 13.4 16.1

‘Contribution’ of the parliamentary phase (change between the length of transposing bills submitted to parliaments and the length of final statutes, in %)�����������������������������������������������������������������������������������������117 Data on selected activities during the parliamentary stage of the transposition process���������������������������������������������������������������������������������118 Number of days before or after transposition deadline����������������������������������������������118 Number of days before or after the transposition deadline����������������������������������������119 Information on infringement proceedings�������������������������������������������������������������������119 Standard budget procedure��������������������������������������������������������������������������������������������230 Political processes in creditor states������������������������������������������������������������������������������237 Political processes in debtor states���������������������������������������������������������������������������������238 Standard mode vs Crisis mode���������������������������������������������������������������������������������������240 Formal provisions regarding parliamentary scrutiny of justice and home affairs measures����������������������������������������������������������������������������297

TABLE OF CASES Cases of the Court of Justice of the European Union Case 9/56 Meroni & Co v High Authority of the European Coal and Steel Community (Meroni) [1958] ECLI:EU:C:1958:7������������������������������������������������������������������������������������221 Case 41/74 Van Duyn v Home Office, 1974 ECR 1337�����������������������������������������������������������315 Case 38/79 Butter- und Eier-Zentrale Nordmark eG v Hauptzollamt Hamburg-Jonas [1980] ECLI:EU:C:1980:67��������������������������������������������������������������������������������������������������209 Case 138/79 SA Roquette Frères v Council of the European Communities [1980] ECLI:EU:C:1980:249���������������������������������������������������������������������������������������������������� 266, 273 Case 139/79 Maizena GmbH v Council of the European Communities [1980] ECLI:EU:C:1980:250���������������������������������������������������������������������������������������������������� 266, 273 Joined Cases C-188, C-189 and C-190/80 France, Italy, and the UK v Commission [1982] ECLI:EU:C:1982:257������������������������������������������������������������������������������������������������267 Case C-204/86 Greece v Council [1988] ECLI:EU:C:1988:450����������������������������������������37, 267 Case 30/88 Greece v Commission [1989] ECLI:EU:C:1989:422���������������������������������������������218 Case C-70/88 Parliament v Council (‘Chernobyl’) [1991] ECLI:EU:C:1991:373�����������������279 Case C-300/89 Commission v Council (Titanium Dioxide) [1991] ECLI:EU:C:1991:244�������������������������������������������������������������������������������������������������������������266 Case C-65/90 Parliament v Council [1992] ECLI:EU:C:1992:325����������������������������������������209 Case C-240/90, Germany v Commission of the European Communities [1992] ECLI:EU:C:1992:408�������������������������������������������������������������������������������������������������������������220 Case C-316/91 Parliament v Council [1994] ECLI:EU:C:1994:76����������������������������������������209 Case C-327/91 France v Commission [1994] ECLI:EU:C:1994:305��������������������������������������276 Case C-65/93, Parliament v Council [1995] ECLI:EU:C:1995:91�����������������������������������������267 Case C-25/94 Commission v Council [1996] ECLI:EU:C:1996:114��������������������������������37, 269 Case C-58/94 Netherlands v Council [1996] ECLI:EU:C:1996:171�����������������������������������������38 Case C-189/97 Parliament v Council (‘EU/Mauritania Fisheries Agreement’) [1999] ECLI:EU:C:1999:366������������������������������������������������������������������������������������������������276 Case C-66/04 United Kingdom v Parliament and Council (‘Smoke Flavourings’) [2005] ECLI:EU:C:2005:743����������������������������������������������������������������������������������������� 220–21 Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others [2005] ECLI:EU:C:2005:449������������������������������������������������������������������������������������������������221 Case C-91/05 Commission v Council (‘ECOWAS’ or ‘Small Arms and Light Weapons’) [2008] ECLI:EU:C:2008:288���������������������������������������������������������������������� 273–74 Case C-130/10 Parliament v Council (‘Smart Sanctions’) [2012] ECLI:EU:C:2012:472���������������������������������������������������������������������������������������������������� 274, 277 Case C-355/10, Parliament v Council [2012] ECLI:EU:C:2012:516�������������������������������������220

xiv  Table of Cases Case C-658/11 Parliament v Council (‘Mauritius’) [2014] ECLI:EU:C:2014:2025��������������43, 183, 209, 277–79 Case C-270/12 United Kingdom v Parliament and Council (‘Short Selling’) [2014] ECLI:EU:C:2014:18����������������������������������������������������������������������������������������� 219, 221 Case C-399/12 Germany v Council [2014] ECLI:EU:C:2014:2258���������������������������������������218 Case T-562/12 Dalli v Commission [2015] ECLI:EU:T:2015:270������������������������������������������264 Case C-425/13 Commission v Council [2015] ECLI:EU:C:2015:483������������������������������39, 277 Case C-73/14 Council v Commission [2015] ECLI:EU:C:2015:663��������������������������������������223 Case C-263/14 Parliament v Council (‘Tanzania’) [2016] ECLI:EU:C:2016:435���������43, 183, 277–79 Case C-363/14 Parliament v Council [2015] ECLI:EU:C:2015:579��������������������������������������220 Case C-73/17 French Republic v European Parliament [2018] ECLI:EU:C:2018:787���������209 Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union [2018] ECLI:EU:C:2018:851�������������������������������������������������� 146, 150, 156 Case C-543/17 Commission v Belgium [2019] ECLI:EU:C:2019:573�������������������������������������90 Opinions of Advocate Generals of the Court of Justice of the European Union Case C-411/06, Commission v Parliament and Council (‘Basel Convention’) Opinion of AG Maduro [2009] ECLI:EU:C:2009:189������������������������������������������������������280 Case C-399/12 Opinion of AG Cruz Villalon [2014] ECLI:EU:C:2014:289������������������������221 Case C-73/14 Council v Commission Opinion of AG Sharpston [2015] ECLI:EU:C:2015:490�������������������������������������������������������������������������������������������������������������215 Case C-88/14 Commission v Parliament and Council Opinion of AG Mengozzi [2015] ECLI:EU:C:2015:304������������������������������������������������������������������������������220 Case C-600/14 Germany v Council Opinion of AG Maciej Szpunar [2017] ECLI:EU:C:2017:296�������������������������������������������������������������������������������������������������������������215 Opinions of the Court of Justice of the European Union Opinion 2/15 of the Court (Singapore) [2017] ECLI:EU:C:2016:992�����������������������������������������������������������������������175–76, 181–82, 195, 318 Opinion 1/17 of the Court [2019] ECLI:EU:C:2019:341���������������������������������������������� 182, 187 National Cases Attorney General v De Keyser’s Royal Hotel Ltd [1920] UKHL 1, [1920] AC 508���������������145 Greek Bailout Decision, 2 BvR 987/10, 2 BvR 1485/10, 2 BvR 1099/10, 7 September 2011������������������������������������������������������������������������������������������������������������������321 Bundestag Right of Participation/EFSF, 2 BvE 8/11, 28 February 2012�������������������������������321 Bundestag Right of Information ESM/Euro Plus Pact, 2 BvE 4/11, 19 June 2012�����������������321

Table of Cases  xv Rejection of Temporary Injunctions ESM/Fiscal Compact, 2 BvR 1390/12, 2 BvR 1421/12, 2 BvR 1438/12, 2 BvR 1439/12, 2 BvR 1440/12, 2 BvE 6/12, 12 September 2012����������������������������������������������������������������������������������������������������������������321 Laker Airways Ltd v Department of Trade [1977] QB 643�����������������������������������������������������145 R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513���������������������������������������������������������������������������������������������������������������������145 Case 2 BvE 2/08 (Lisbon Treaty) [2009] ECLI:DE:BVerfG:2009: es20090630.2bve000208�������������������������������������������������������������������������������������������������������215 R (on the Application of Miller and Another) v Secretary of State for Exiting the European Union [2017] UKSC 5�������������������������������������������������������������������������� 144, 146

xvi

Introduction Executive–Legislative (Im)balance in the European Union DIANE FROMAGE AND ANNA HERRANZ-SURRALLÉS

I.  The Need for a Re-assessment The European Union (EU) is typically described as a ‘polity in the making’1 and, as such, executive–legislative relations remain notably in flux. The latest treaty reform, the Lisbon Treaty, which has been in force since December 2009, marked an important step towards the reinforcement of both the European Parliament (EP) and national Parliaments (NPs) in the EU. The sometimes dubbed ‘treaty of parliaments’2 significantly strengthened the EP’s legislative, elective and treaty-making powers, to the point that some authors characterise it as a ‘normal parliament’,3 and recognised the importance of NPs in its core for the first time. Simultaneously, NPs have also become more active within the EU.4 The two Commissions in place during this first decade post-Lisbon (Barroso II and Juncker) established differing yet important and close relations to national and regional parliaments, as evidenced, inter alia, by the creation of the Task Force on Subsidiarity, Proportionality and Doing Less More Efficiently in 2018, or by the very frequent visits of commissioners to NPs.5 More recently, Ursula von der Leyen, the new European Commission President, pledged to continue strengthening the partnership with the EP6 as well as to maintain

1 L Hooghe and G Marks ‘The Making of a Polity: The Struggle over European Integration’ (1997) 1(4) European Integration Online Papers, http://eiop.or.at/eiop/texte/1997-004a.htm; EO Eriksen (ed), Making the European Polity: Reflexive Integration in the EU (Abingdon, Routledge, 2007); K McNamara, ‘Authority under Construction: The European Union in Comparative Political Perspective’ (2018) 56(7) Journal of Common Market Studies 1510. 2 European Parliament, ‘Draft report on the implementation of the Treaty provisions concerning national parliaments’ (P Rangel, 2016/2149(INI)), 4. 3 A Ripoll Servent and C Roederer-Rynning, ‘The European Parliament: A Normal Parliament in a Polity of a Different Kind’ (2018) Oxford Research Encyclopedia of Politics, DOI: 10.1093/acrefore/9780190228637.013.152. 4 On this evolution, see C Fasone and D Fromage, ‘From Veto Players to Agenda-Setters? National Parliaments and Their “Green Card” to the European Commission’ (2016) 2 Maastricht Journal of European and Comparative Law 294. 5 The European Commission reports 140 visits and meetings with national parliaments in 2018. See European Commission, ‘Annual Report 2018 on the application of the principles of subsidiarity and proportionality and on relations with national parliaments’ COM (2019) 333 final, 11 July, 23. 6 U von der Leyen, ‘A Union That Strives for More: My Agenda for Europe, Political Guidelines for the Next European Commission (2019–2024)’ (2019), https://ec.europa.eu/commission/sites/beta-political/files/ political-guidelines-next-commission_en.pdf.

2  Diane Fromage and Anna Herranz-Surrallés the practice of regular visits of Commissioners to NPs.7 Such developments thus speak in favour of a qualitative jump in the parliamentarisation of the EU in the decade following the Lisbon Treaty. However, almost at the same moment as the Lisbon Treaty was entering into force, the EU arguably faced one of its most acute crises. The economic and financial crisis that erupted in 2008 indeed required the adoption of a series of measures to safeguard the common currency, as well as the European economies more generally. New powers were consequently transferred to the EU, and Member States’ fiscal policies are now more closely coordinated. These measures had to be adopted swiftly, and governments undoubtedly led this trend, both at the EU level (eg, the European Council) and at the national level (for instance, by means of the express adoptions of constitutional reforms or by their resorting to decree laws and other acts adopted by the executive). In other words, the economic and financial crisis showed that where urgent and important decisions must be made, national governments, and especially heads of state and government sitting in the European Council, clearly (still) take the lead and act almost alone. The ongoing COVID-19 pandemic has  confirmed this tendency of the predominance of the executives in the immediate management of the crisis,8 a predominance that, this time, is further exacerbated by the fact that the meetings among executives take place remotely, thereby rendering parliamentary control even more difficult to exercise. Against this background, characterised by contradictory shifts in the balance of powers between governments and parliaments, this edited volume proposes a (re-)assessment of the balance between executive and legislative powers at both the national and the European levels, taking all these recent changes into account.9 It aims at analysing whether parliaments were still overall empowered as could be expected after the Lisbon Treaty entered into force or whether, in reality, this change was limited following the eurozone crisis and other recent challenges, and, if so, whether it is bound to remain this way in the longer term. Such a study is particularly needed as recent developments such as the Brexit referendum in the UK, the rise of Eurosceptic parties or the so-called ‘democratic backsliding’ in some EU Member States signal the enduring disconnect of large segments of the population from the European integration process. Furthermore, the reforms introduced by the Lisbon Treaty triggered the interest of a wide range of scholars, and the publications on parliaments in the EU have flourished over the past decade. Many of them have focused on the Early Warning System for the control of the respect of the principle of subsidiarity.10

7 European Commission, ‘The Working Methods of the von der Leyen Commission: Striving for More at Home and in the World’, press release, 4 December 2019. 8 At the time of writing (June 2020), it is indeed mostly the European Commission and the Member States collectively acting in the European Council and the Eurogroup that have shaped the EU’s response to the crisis, with very limited involvement of the EP. 9 Owing to the fact that this crisis is unfolding at the time of writing, the developments induced by the Covid-19 crisis are not taken into consideration here, but are the subject of further analysis in the Epilogue by Peter Lindseth. 10 See, inter alia, P Kiiver, The Early Warning System for the Principle of Subsidiarity. Constitutional Theory and Empirical Reality (Abingdon, Routledge, 2012); M Goldoni and A Jonsson Cornell (eds), National and Regional Parliaments in the EU-Legislative Procedure Post-Lisbon: The Impact of the Early Warning Mechanism (Oxford, Hart Publishing, 2017); K Granat, The Principle of Subsidiarity and its Enforcement in the EU Legal Order (Oxford, Hart Publishing, 2018).

Introduction  3 Some have also examined the question of interparliamentary cooperation,11 whilst others have concentrated on the impact of the economic and financial crisis.12 Other studies have compared several or all national parliaments,13 and individual Member States have also been examined.14 The European Parliament too has attracted academic attention.15 Yet, despite these numerous publications, there is as of yet no comparative analysis of executive–legislative relations across levels of parliamentary representation as well as across policy areas. This is the task that this volume undertakes by examining the executive–legislative relations in a multi-level perspective (Part I), at the national level (Part II) and in a variety of policy sectors (Part III). In doing so, the volume includes widely under-explored aspects of EU policy-making, such as the role of parliaments in the implementation of EU law (eg, national transposition, the adoption of delegated acts or the application of international treaties) and policy areas where executive–legislative relations have been particularly debated over the past decade (trade, economic and monetary policy, foreign policy, defence, and justice and home affairs). Another asset of this collection is its combination of legal analyses of the post-Lisbon developments with political science perspectives on their drivers and consequences. This Introduction first recalls to what extent the role of parliaments has changed since the entry into force of the Lisbon Treaty by comparing it to the situation pre-Lisbon (section II). It then considers the impact on the balance between executive and legislative powers of the crises that arose during the first decade after it entered into force (section III). This is followed by a presentation of the common framework designed to assess those changes which has been used by all the contributors to this edited volume, alongside a 11 B Crum and JE Fossum (ed), Practices of Interparliamentary Coordination in International Politics (Colchester, ECPR Press, 2013); N Lupo and C Fasone (eds), Interparliamentary Cooperation in the Composite European Constitution (Oxford, Hart Publishing, 2016). 12 D Jančić (ed), National Parliaments after the Lisbon Treaty and the Euro Crisis: Resilience or Resignation? (Oxford, Oxford University Press, 2017); A Maatsch, Parliaments and the Economic Governance in the European Union (Abingdon, Routledge, 2017); T Winzen, Constitutional Preferences and Parliamentary Reform: Explaining National Parliaments’ Adaptation to European Integration (Oxford, Oxford University Press, 2017); I Cooper, A Maatsch and J Smith, ‘Special Section: Analysing the Role of Parliaments in the European Economic Governance’ (2017) 70(4) Parliamentary Affairs; A Verdun and J Zeitlin (eds), ‘Special Issue: EU Socio-economic Governance since the Crisis: The European Semester in Theory and Practice’ (2018) 25(2) Journal of European Public Policy; D Fromage and T van den Brink (eds), ‘Special Issue: National Parliaments, the European Parliament and the Democratic Legitimation of the European Union Economic Governance’ (2018) 40(3) Journal of European Integration. 13 K Auel and T Christiansen (ed), ‘Special Issue: After Lisbon: National Parliaments in the European Union’ (2015) 38(2) West European Politics; C Hefftler et al (eds), The Palgrave Handbook on National Parliaments and the European Union (London, Palgrave Macmillan, 2015); D Fromage, Les Parlements dans l’Union Européenne après le Traité de Lisbonne. La Participation des Parlements allemands, britanniques, espagnols, français et italiens (Paris, L’Harmattan, 2015); T Freixes Sanjuán et al (eds), Constitucionalismo Multinivel y Relaciones entre Parlamentos (Madrid, Centro de Estudios Políticos y Constitucionales, 2013). 14 A-K Mangold, Gemeinschaftsrecht und deutsches Recht. Die Europäisierung der deutschen Rechtsordnung in historisch-empirischer Sicht (Tübingen, Mohr Siebeck, 2011); and C Calliess and T Beichelt, Die Europäisierung des Parlaments. Die europapolitische Rolle von Bundestag und Bundesrat (Gütersloh, Bertelsmann Stiftung, 2015); A Salazar, La participación de los parlamentos nacionales en la Unión Europea (Madrid, Congreso de los diputados, 2015); N Lupo and G Piccirilli (eds), The Italian Parliament in the European Union (Oxford, Hart Publishing, 2017). 15 O Costa and F Saint Martin, Le Parlement européen (Paris, La documentation française, 2011); A Ripoll Servent, Institutional and Policy Change in the European Parliament: Deciding on Freedom, Security and Justice (London, Palgrave Macmillan, 2015); L Roger, Voice(s) in the European Parliament: Deliberation and Negotiation in EP Committees (Baden-Baden, Nomos, 2016); A Ripoll Servent, The European Parliament (London, Palgrave Macmillan, 2018).

4  Diane Fromage and Anna Herranz-Surrallés presentation of the chapters themselves (section IV). It concludes with some forward-looking reflections as to how the balance between executives and legislatives might continue to evolve, thereby also offering a reflection on the thorough and critical analysis conducted by Peter Lindseth in the Epilogue (section V).

II.  Parliaments in the Pre-Lisbon Era: The Overall Domination of Executive Powers The Lisbon Treaty introduced important changes for parliaments at the EU and the national levels. At the European level, the EP was significantly reinforced as co-legislator, given the transformation of co-decision into the Ordinary Legislative Procedure (OLP), which, as the name indicates, became the procedure by default within the EU. Therefore, it is now only in exceptional cases that the EP does not act as co-legislator on an equal footing with the Council. It should also be noted that the EP was empowered to approve international agreements on almost every subject area, with the consequent increase in the rights to be informed about the conduct of the negotiations. At the national level, for the first time ever, the role of NPs in the EU was recognised in the core of the Treaties (thus far, they had only been mentioned in a protocol annexed to the Treaties). Article 12 of the Treaty on European Union (TEU) prescribes that ‘[n]ational parliaments contribute actively to the good functioning of the Union’. In addition, Article 10 TEU introduces a definition of democracy within the EU for the first time, whereby democracy is to be guaranteed by the EP and by the parliaments of the Member States. To this end, several new prerogatives and informational rights were attributed to NPs in the Treaty itself: for instance, they are to receive legislative proposals and a series of programmatic documents directly from the EU institutions. Finally, it should also be noted that it is not only NPs and the EP that have been empowered severally; their cooperation, as well as cooperation among NPs generally, was also given particular importance in the Treaties. Interparliamentary cooperation is defined as one of the means by which NPs are to ‘actively contribute to the good functioning of the Union’. This contrasts with the situation that had existed prior to 2009. For the EP, the introduction of OLP was far from a cosmetic change. For example, in the legislature preceding the Lisbon Treaty (2004–09), the EP co-decided together with the Council on 49 per cent of legislative acts, whereas in the first term following the Lisbon Treaty (2009–14), this figure rose to 89 per cent.16 Prior to Lisbon, the EP was also a marginal player in external relations, since it did not have a say in the adoption of international agreements on crucial domains such as trade policy or the external dimension of internal security policy. Therefore, despite the trend inaugurated with the Single European Act (1986) to increase the EP’s powers on the occasion of each Treaty revision, prior to Lisbon, the so-called EU ‘institutional triangle’ was highly imbalanced towards the Council and the Commission.

16 European Parliament, Activity Report: Developments and Trends in the Ordinary Legislative Procedure (2019) PE 639.611, 3.

Introduction  5 The change was also remarkable for the NPs. Prior to the entry into force of the Lisbon Treaty, national legislatures were still viewed as ‘losers’, ‘latecomers’17 or ‘victims of integration’ becoming ‘competitive actors’.18 Indeed, the European integration process was originally conceived as a ‘classical’ treaty of international law, delegated Members of Parliament (MPs) alone were sitting in the European Parliamentary Assembly until 1979, and it would have been difficult to foresee at its origins that the European integration process would lead to the level of integration it has reached now. These factors combined explain why NPs were not mentioned in the European Treaties until the Treaty of Maastricht (1992).19 Furthermore, the fact that the successes of the economic integration arguably (temporarily) excused the EU from requiring stronger democratic legitimacy safeguards participated to this lack of involvement of NPs. In the Treaty of Maastricht, NPs’ status began to improve. They were mentioned in a non-binding declaration and later became the object of a dedicated (legally binding) protocol in the Treaty of Amsterdam (1997). Their scrutiny of European legislative documents was then eased, for instance, because a period of six weeks had to elapse before a proposal could be placed on the Council’s agenda. Despite the Treaties’ original silence, NPs could naturally be guaranteed rights of information, and of participation, at the national level. The German chambers, for instance, were to be informed since the approval of the Treaties of Rome of 1957, whereas the French Parliament had also been guaranteed similar rights that, however, were de facto never applied, since the Fifth Republic started a few months later in 1958. As the German example shows, practice often differed from formal rules, and parliaments were commonly not sufficiently involved, both because of a lack of interest and because of limited rights of participation and incomplete information. Even in the UK, where Parliament developed detailed scrutiny mechanisms and had some rights ever since it joined the Communities in 1973, information was long delayed or incomplete. At the sub-national level, the situation was even worse, as most regions were not even actively involved in EU affairs for several decades and, as when mechanisms for their participation were designed, they often involved the participation of executives.20 A strong imbalance in favour of executives (ie, to the detriment of legislatures) was thus visible at both the national and the European levels ever since the European integration process started, and at least until the adoption of the Lisbon Treaty, because it is mostly executives (ie, national governments individually at the national level and collectively at the EU level) that were the main actors in charge. This fact alone would not lead to the predominance of executives, but coupled as it was during the first decades of the integration process with an absence of adequate parliamentary scrutiny and with an ever-increasing transfer of competences from the national level to the European level, it explains why parliaments were largely considered to be ‘losers’ and ‘latecomers’.21 17 A Maurer and W Wessels, National Parliaments on Their Ways to Europe: Losers or Latecomers? (Baden-Baden, Nomos, 2001). 18 J O’Brennan and T Raunio, National Parliaments within the Enlarged European Union: From Victims of Integration to Competitive Actors? (Abingdon, Routledge, 2007). 19 Further explanations are provided by G Barrett, The Evolving Role of National Parliaments in the European Union: Ireland as a Case Study (Manchester, Manchester University Press, 2018) 1–2. 20 This is, for instance, still the case in Germany, Italy and Spain today. See Fromage (n 13) pt II, ch 1, s 2. 21 Interestingly, some of the national parliaments themselves resisted some attempts to correct the existing executive–legislative (im)balance by means of Treaty revisions; Barrett (n 19) 3.

6  Diane Fromage and Anna Herranz-Surrallés Executive–legislative imbalance is hence understood here as governments being in a better place than their parliaments to be active players in the EU decision-making process while insufficient control of their actions occurs. This materialises in, inter alia, governments being better informed than parliaments and directly involved, whereas parliaments can only seek to influence their governments. Another dimension of the executive– legislative imbalance is also visible more generally where governments are acting with barely any involvement of parliaments, even if parliaments would be involved in a similar setting at the national level. Therefore, executive predominance refers to the deparliamentarisation, ie, the process according to which parliaments are set aside from governance procedures.22 In summary, pre-Lisbon, the main characteristics of the executive–legislative imbalance were: information asymmetry to the benefit of the executives;23 lack of transparency, for instance, of the proceedings of institutions and bodies bringing together governments at the EU level (ie, the Council of the European Union and the European Council); impossibility for (a majority of) parliaments to bind governmental decisions in Brussels;24 and the original limited involvement of the EP.

III.  Executive–Legislative (Im)balance 10 Years after Lisbon: Between Re-balancing and Exacerbation The Lisbon Treaty was expected to improve parliaments’ standing, thereby redressing, or at least moderating, the above-mentioned executive–legislative imbalance. Yet, 10 years after its entry into force, it is still unclear whether it has succeeded in this endeavour, as several, contradicting, tendencies can be observed. On the one hand, according to several authors, the confluence of acute crises has transformed EU politics and institutions in a way that further compromises parliamentary democracy. This transformation, variously conceptualised as ‘emergency politics’,25 ‘integration through crisis’26 or ‘crisification’,27 may exacerbate the executive–legislative imbalance in several respects. First, it alters the decision-making balance, as the (European) Council takes centre stage, the Commission and the executive agencies gain further discretion, while the EP is pushed into the background.28 Second, solutions to recent crises have invariably implied the ‘hurried creation of new institutions and accelerated reforms’29 that circumvent the normal legislative procedure and sometimes even ignore established constitutional

22 On the ‘deparliamentarisation’ thesis, see R Tapio and S Hix, ‘Backbenchers Learn to Fight Back: European Integration and Parliamentary Government’ (2000) 4 West European Politics 142, 144 f. 23 D Curtin, ‘Challenging Executive Dominance in European Democracy’ (2014) 77(1) Modern Law Review 1. 24 C Hefftler et al, The Palgrave Handbook of National Parliaments and the European Union (London, Palgrave Macmillan, 2015). 25 J White, ‘Emergency Europe’ (2015) 63 Political Studies 300. 26 N Scicluna, ‘Integration through the Disintegration of Law? The ECB and EU Constitutionalism in the Crisis’ (2018) 25(12) Journal of European Public Policy 1874. 27 M Rinhard, ‘The Crisisification of Policy-Making in the European Union’ (2019) 57 Journal of Common Market Studies 616. 28 ibid 627. 29 White (n 25) 302.

Introduction  7 boundaries.30 These shortcuts and extraordinary measures, which have increasingly combined closer EU coordination with strong intergovernmental control, further dilute political responsibility for collective decision-making, leaving the executives largely unaccountable. Finally, typical of emergency politics is also the rhetoric of vital necessity and ‘there-is-no-alternative’ type of justifications, which limit the possibility of party-political contestation.31 All in all, the effects of crises on executive–legislative relations can be severe and long-lasting. The management of the EU financial and economic crisis has often been used to illustrate all the above-mentioned traits of emergency politics. As proponents of New Intergovernentalism have argued, post-Lisbon economic governance exemplifies the growing executive functions undertaken by the European Council, both as a crisis management institution and in the day-to-day operation of the European Semester.32 The frequent Euro Summits or the creation of intergovernmental fora outside the Treaties, such as the European Stability Mechanism (ESM), are part of this trend towards the intergovernmentalisation of the EU. At the same time, in line with (Post)functionalist expectations, the economic crisis also led to an empowerment of non-majoritarian institutions, particularly the European Central Bank (ECB), which gained considerable discretion in contradiction with its well-delimited constitutional mandate.33 These institutional reforms were legitimised ex post through fast-track amendments of the Lisbon Treaty or via the action of the Court of Justice of the European Union (CJEU).34 In both cases, the effect has been further insulation of economic governance from political debate. The European Semester procedure has significantly affected the ability of NPs to influence and scrutinise the adoption of the national budget, while the EP’s role in determining EU economic policy remains marginal.35 Along with the diffuse responsibility for key decisions, the current economic governance architecture is thus commonly criticised for its inbuilt lack of parliamentary accountability.36 Beyond the economic crisis, the crisification of the EU policy-making is seen as a much wider phenomenon, visible, inter alia, in the proliferation of crisis management bodies across European Commission Directorate Generals and EU agencies.37 Although less visible than developments related to the economic or migration crises, these are examples of a culture of exception and restrictive deliberation as ‘they seek to shortcut politics and draw in particular experts for crisis assessment’.38 So-called ‘de novo institutions’ tightly

30 Scicluna (n 26); C Kreuder-Sonnen, ‘Beyond Integration Theory: The (Anti-)constitutional Dimension of European Crisis Governance’ (2016) 54 Journal of Common Market Studies 1350. 31 White (n 25). 32 S Fabbrini and U Puetter, ‘Integration without Supranationalisation: Studying the Lead Roles of the European Council and the Council in Post-Lisbon EU Politics’ (2016) 38 Journal of European Integration 481; U Puetter, ‘Europe’s Deliberative Intergovernmentalism: The Role of the Council and European Council in EU Economic Governance’ (2012) 19 Journal of European Public Policy 161. 33 L Hooghe and G Marks, ‘Grand Theories of European Integration in the Twenty-First Century’ (2019) 26 Journal of European Public Policy 1119. 34 Scicluna (n 26). 35 See n 12 above. 36 B Crum, ‘Parliamentary Accountability in Multilevel Governance: What Role for Parliaments in Post-crisis EU Economic Governance?’ (2018) 25 Journal of European Public Policy 268. 37 Rinhard (n 27). 38 ibid 627.

8  Diane Fromage and Anna Herranz-Surrallés controlled by the Member States are also becoming more frequent in areas such as foreign policy, justice and home affairs, and energy.39 New elaborations in EU integration theory see this as a new trait of the post-Lisbon era, characterised by both strong functional pressures for EU-level coordination and yet rising domestic opposition to cede further competences. In sum, despite the parliament-friendly changes of the Lisbon Treaty, parliaments operate in a new context where executive discretion seems to have turned up a notch. On the other hand, other authors have placed the emphasis on the capacity of parliaments to find ways to thrive in adverse contexts as well as on the democracy-enhancing effect of the politicisation of the EU. The parliamentarisation of the EU is said to have continued despite, and sometimes even through, the crisis.40 For example, some scholars have argued that the EU economic governance is not ‘a parliament-free space’,41 and that the EP has gained information and even consultation rights in this area which were not foreseen in the Lisbon Treaty.42 The same goes for international agreements, where the EP has made the most of its newly gained treaty-making powers to increase its access to information and even the right to meet directly with the EU’s negotiating partners.43 The EP’s empowerment has also been observed in behind-the-scenes areas such as the institutionalisation of trialogues and the EP’s growing attention to the scrutiny of implementing legislation.44 Altogether, this has led Vivien Schmidt to vindicate a new grand-theoretical approach, New Parliamentarism, to better acknowledge the ‘new formal and informal ways in which the EP has regained influence’.45 At the national level, the growing politicisation of the EU, which has become more tightly coupled to core domestic debates and cleavages, can also be said to have spurred parliamentary activism. For example, some studies have shown that the presence of Eurosceptic backbenchers increases parliamentary scrutiny.46 As demonstrated by developments in trade policy, politicisation has also been positively correlated with an unexpected prominent role of some national (and regional) parliaments.47 Therefore, growing politicisation, while exposing the contestation regarding EU policies and sometimes even the EU

39 Fabbrini and Puetter (n 32). 40 A Héritier, C Moury, MG Schoeller and KL Meissner, ‘The European Parliament as a Driving Force of Constitutionalisation’, Report for the Constitutional Affairs Committee of the European Parliament. PE 536.467, 2016, available at: www.europarl.europa.eu/committees/en/supporting-analyses-search.html; KL Meissner and MG Schoeller, ‘Rising Despite the Polycrisis? The European Parliament’s Strategies of Self-Empowerment after Lisbon’ (2019) 26 Journal of European Public Policy 1075. 41 B Rittberger ‘Integration without Representation? The European Parliament and the Reform of Economic Governance in the EU’ (2014) 52 Journal of Common Market Studies 1174. 42 Meissner and Schoeller (n 40). 43 ibid 1089. 44 C Roederer-Rynning and J Greenwood, ‘The European Parliament as a Developing Legislature: Coming of Age in Trilogues?’ (2017) 24(5) Journal of European Public Policy 735; Héritier et al (n 40) 20 ff. 45 VA Schmidt ‘Re-thinking EU Governance: From “Old” to “New” Approaches to Who Steers Integration’ (2018) 56 Journal of Common Market Studies 1545. 46 K Auel, O Rozenberg and A Tacea, ‘To Scrutinise or Not to Scrutinise? Explaining Variation in EU-Related Activities in National Parliaments’ (2015) 38 West European Politics 300. 47 D Jančić, ‘TTIP and Legislative-Executive Relations in EU Trade Policy’ (2016) 40 West European Politics 202; C Roederer-Rynning and M Kallestrup, ‘National Parliaments and the New Contentiousness of Trade’ (2017) 39 Journal of European Integration 811.

Introduction  9 polity as a whole, can also contribute to make European politics more salient to national audiences.48 The 2019 European elections, which meant the first rise in turnout in 20 years, gives substance to this claim. However, the inability of Member States to propose a Commission President in line with the Spitzenkandidaten system casts another shadow over the hopes of democratic reconnection in European elections.

IV.  An Ever-Evolving Balance and Varied Trends: The Main Findings of this Volume In order to assess the present situation and determine whether any changes have intervened, and if so in whose favour (eg, in favour of parliaments or of governments), the chapters contained in this volume seek to determine whether any recalibration of the executive– legislative relationship can be observed and what factors may explain the observable changes. They also seek to assess these changes. More specifically, in examining a potential recalibration, the authors consider whether any ‘recalibration’ of the executive–legislative relationship – understood as a notable change in this relationship – is observable and, if so, who is the beneficiary of this change. Where applicable, they also assess whether this change affects both parliamentary chambers and if it does so equally. Further, they consider whether it is parliaments as organs or only some parts of them (ie, only a committee or only part of the political representation) that are affected. Attention is also paid to the form this change takes, ie, whether it is formally enshrined. To answer this question, the authors essentially check whether this change is visible in practice only or whether rules of procedures/statutes have also been reformed. This allows them to state whether this change can be anticipated to be long-lasting. The second line of inquiry followed by the chapters of this edited volume regards the drivers of these changes; in other words, how these changes may be explained. This leads the authors to consider who the actors are that are pressing for change and, more specifically, to examine whether these are individual actors or political parties, or whether these changes are induced by the attitude of the judiciary. Next to the actors, the authors consider the circumstances which may have called for these changes. For instance, exceptional circumstances such as crises may upset the balance between executive and legislative powers. Another relevant factor relates to the existence of a dynamic of politicisation of EU affairs characterised by rising polarisation, awareness and social mobilisation, or the absence thereof. Finally, the authors ask whether dynamics of emulation or contagion may be observed, ie, whether some changes relate to practices travelling across parliaments. As a last step in their enquiry, the authors seek to provide an assessment of the changes they observe in the area they consider. They first examine whether any observable ‘recalibration’ towards the legislative is a positive development leading towards more democratic legitimacy or whether it is instead something that reduces efficiency. In a nutshell, this leads

48 R Bellamy and S Kröger, ‘The Politicization of European Integration: National Parliaments and the Democratic Disconnect’ (2016) 14 Comparative European Politics 125. See also C Neuhold and G Rosen (eds), ‘Special Issue Out of the Shadows, into the Limelight: Parliaments and Politicisation’ (2019) 7 Politics and Government.

10  Diane Fromage and Anna Herranz-Surrallés them to assess the overall impact on the scrutiny of EU affairs and to ask whether another type of change would have been (or is still) desirable. The chapters in this volume, the findings of which are presented below, examine these questions based on examples which belong to three main categories, which have guided the structure of this book. First, the relations between executive–legislative powers are analysed in a multi-level perspective. Second, the balance between executives and legislatives within Member States is considered. Third, the state of play in specific policy areas is examined, thereby allowing for a cross-policy comparative analysis. The varieties of perspectives adopted by the chapters allow for a comprehensive and nuanced assessment of executive–legislative relations 10 years after the entry into force of the Lisbon Treaty. This makes it possible to distinguish features that are, for instance, related to a specific policy area and the related division of competences between the EU and its Member States, or that derive from more structural limitations of the EU hybrid institutional framework. The rich contributions made by the different authors, as well as their conclusions, are brilliantly (and critically) summarised by Peter Lindseth in his Epilogue. Therefore, the focus in this Introduction is set on depicting the trends observed by the authors along the three lines of enquiry that serve as a guiding thread to this edited volume, ie, (1) recalibration; (2) drivers; and (3) assessment.

A. Recalibration The chapters paint a mixed picture as to the extent to which a recalibration in the executive–legislative relation has happened, and especially to whose benefit it has done so. Indeed, about half of the chapters validate the idea of a recalibration towards the legislatures. Amongst the chapters addressing executive–legislative relations from a multi-level perspective, several emphasise the reinforcement of the EP in the EU inter-institutional system. In Chapter 2, Marco Urban discusses the gradual increase of the EP’s powers through the adoption of Inter-Institutional Agreements (IIAs). He argues that IIAs have played an ‘anticipation function’, pre-figuring the formal recognition of further prerogatives in subsequent treaty reforms. In that regard, the post-Lisbon period has been marked by important IIAs, such as the 2010 Framework Agreement or the 2015 IIA on Better Law Making, which have consolidated and expanded the EP’s treaty-making, elective and legislative powers. In Chapter 4, Thomas Christiansen and Sabina Lange also report a significant increase in the EP’s role in the often-overlooked domain of implementing legislation. The Lisbon Treaty recognised binding powers for the EP on a par with the Council in delegated acts. Yet, the authors conclude that the parliamentarisation of this domain is still a ‘work in progress’, given that the EP’s new powers have given rise to new interinstitutional tensions regarding the distinction between implementing and delegated acts, and regarding the criteria to determine the choice for one or the other type of delegation. The chapters addressing executive–legislative relations at the national level also report some cases of moderate recalibration towards the latter. In her study of the implementation of EU law in Chapter 5, Diane Fromage argues that the Lisbon Treaty’s provisions on parliamentary involvement on the pre-legislative stage, such as information rights and the subsidiarity and political dialogue procedures, have led to closer cooperation between (some) parliaments and (some) governments to better anticipate the challenges

Introduction  11 of transposition. Focusing on the UK Parliament in the Brexit negotiations, in Chapter 8 Kathryn Wright presents the rather paradoxical finding that a traditionally weak parliament was able to creatively limit three sources of executive dominance via the use of scrutiny committees of secondary legislation, (cross-party) private members’ bills, indicative votes and amendable motions. When it comes to the sectoral chapters, trade policy provides the most significant evidence of post-Lisbon recalibration of executive–legislative relations. Quite remarkably, this is an area where both the EP and NPs seem to have strengthened their position simultaneously. In Chapter 10, Cristina Fasone and Maria Romaniello highlight the increased influence of all parliamentary levels (regional, national and European) on the ex ante stage of negotiations of the controversial EU trade agreements with Canada and the US via greater access to information. In Chapter 11, Katharina Meissner and Guri Rosén confirm and complement these findings with rich empirical evidence on the increased legislative– executive interaction at both the European and the national levels. Focusing more on the dynamics of political contestation on trade policy, in Chapter 9 Péter Márton presents a soberer interpretation of the changing legislative–executive balances in this domain. He argues that the Council and the Commission chose to empower the EP as a way to depoliticise the trade agenda and to limit the involvement of NPs. In contrast, the other chapters do not observe a recalibration towards the legislative, but the endurance, or even a further reinforcement, of executive drift. Chapter 1 by Peter Bursens sets the stage by examining the democratic flaws of the EU’s current institutional design. Building on the trilemma of democracy, sovereignty and integration, the chapter argues that the market integration project has provided the national and European-level executive actors with instruments that they can use to play a dominant role in EU decisionmaking. Similarly, in Chapter 3 Elena Griglio takes issue with the structural empowerment of the Council of the EU and the European Council. She argues that despite their intergovernmental composition, these bodies are increasingly hybrid bodies with supranational traits and collective prerogatives in EU policy-making which remain largely unaccountable. These structural tendencies at the EU level are aggravated when combined with the ‘presidentialisation’ tendencies visible in some Member States. Chapter 7 by Nicola Lupo illustrates this development by examining the Italian case. With the exception of trade policy, most of the sectoral chapters also paint a bleak picture for parliaments. Even in the area of trade, Chapter 12 by Wolfgang Weiß examines the oftenneglected executive dominance in the implementation and operation of international trade agreements. Weiß argues that in the post-Lisbon period, there has been a tendency towards ever more extensive delegation of powers to executive treaty bodies that assume significant public powers, including treaty amendment and decision-making powers on essential issues. According to him, the establishment of this sophisticated treaty body system for the implementation of EU trade agreements may even ‘evaporate the EP’s legislative and treaty making powers’. In Chapter 13, Claudia Wiesner also illustrates the post-Lisbon executive drift in EU economic governance. While there are differences across sub-sectors of this policy domain and across NPs, the trend has been that of a reinforcement of the executives with the proliferation of intergovernmental agreements outside the EU treaties and the extensive delegation of decision-making powers to non-majoritarian bodies. The chapters addressing other policy domains with a strong intergovernmental component (the Common Foreign and Security Policy (CFSP), the Common Security

12  Diane Fromage and Anna Herranz-Surrallés and Defence Policy (CSDP) and the Area of Freedom, Security and Justice (AFSJ)) also find that, despite some changes being observable post-Lisbon, the traditional executive predominance remains mostly unchallenged. In Chapter 15, Graham Butler argues that in the CFSP, the Council is still the holder of ‘unabashed executive power’. The only significant change concerns stronger EP information rights in international agreements touching on the CFSP. In Chapter 14, Anna Herranz-Surrallés states that the most significant rebalancing act between executive and legislative powers took place precisely in the years preceding the Lisbon Treaty. Conversely, the post-Lisbon period has meant an increase in the imbalance, given that the recent relaunch of the CSDP has, so far, not been matched by an upgrade in the EP’s involvement. Finally, on the AFSJ, Angela Tacea in Chapter 16 finds mixed blessings. On the one hand, the Lisbon Treaty increased both the EP’s powers (given the generalisation of the OLP) and NPs’ role (greater information rights, the possibility of using the Early Warning System and the monitoring mechanism for Europol). On the other hand, the imbalance in favour of national governments is still present, as illustrated by the increase in the use of non-legislative procedures, which leads to a reduction in the EP’s right of consultation, or the fact that, for some parliaments that operate under a mandating system, the change from unanimity to OLP has actually led to a downgrading of their role. Also noticeable is that most of the episodes of rebalancing towards the legislative are deemed to be short-lived and based on informal processes. Conversely, executive drift tendencies are seen as likely to be long-lasting, unless they are acted upon.

B. Drivers There are two drivers that appear to play a key role in the rebalancing dynamics in the relations between executive and legislative powers: crises and politicisation. For the cases of empowerment of parliaments, half of the chapters refer to politicisation as the key variable in one way or another. Parliamentarisation tendencies arise as the result of the salience of the issues at stake, dynamics of contestation, and legitimacy gaps. For example, at the national level, Robert Zbíral and Jan Grinc in Chapter 6 find that the involvement of parliaments in the implementation of EU norms is related to the degree of political salience of the norms in question. In those cases, parliaments are worthy actors, effectively debating and amending the transposition bills. In her study of the UK, Wright also notes that Parliament’s show of force in the course of the Brexit negotiations took place in a context where, quite paradoxically, EU matters acquired greater salience and politicisation than ever before. At the EU level, the chapters addressing trade policy highlight this politicisation–parliamentarisation nexus. For example, Fasone and Romaniello show that the activism of parliaments can indeed be explained by the strong mobilisation of civil society, which in turn also fostered interparliamentary alliances and learning across parliamentary levels. Meissner and Rosén also consider high politicisation to be behind the assertiveness of the EP and NPs, given that a surge in contestation requires mechanisms to increase legitimacy and provides political incentives for parliamentarians to get involved. In their view, politicisation is a better predictor of the degree of parliamentary involvement than formal authority or institutional strengths.

Introduction  13 Yet, politicisation also produces mixed effects. For example, in the field of economic and monetary policy, Wiesner highlights how executives were successful at depoliticising economic governance by delegating powers to international institutions and experts. Also on trade policy, Márton argues that the decision to empower the EP worked as a strategy to contain the politicisation rather than to address the substantive demands raised by civil society. On a more institutional level, Herranz-Surrallés finds that there is growing politicisation of the CSDP, but that paradoxically, this has had a negative effect on the EP’s ability to play a stronger role in this domain. The explanations that account for the executive drift are usually related to crisis politics coupled with functional pressures in the provision of key public goods, whether these be financial stability or security. For instance, Griglio finds that the necessity of dealing with a number of ‘crises’ affecting some pivotal aspects of the EU integration (such as the economic and financial crisis, the migration crisis and Brexit) has reinforced the executive dominance without there being mechanisms in place to strengthen the existing accountability circuits applicable to the Council of the EU and the European Council. Wright, in turn, shows that the British government made use of the urgency and crisis rhetoric to limit parliamentary powers; this is most notably illustrated by the September 2019 prorogation of Parliament. Wiesner, on the other hand, highlights that most governments attempted to concentrate powers in the hands of the executive in the management of the crisis, even if this did not always work. Herranz-Surrallés further illustrates that in the area of the CSDP, some signs of exceptionalism and emergency politics has arisen. Finally, Tacea demonstrates that crisis and emergency situations are still used by governments to restrict access to information. The rights the EP now possesses in the policy-making procedures have also implied a change of position among Members of the European Parliament (MEPs) towards more security-oriented goals (compared to previous focus on human rights and civil liberties). Therefore, crisis and emergency politics may be viewed as the breeding ground for de-parliamentarisation. However, the authors also underline that the action of courts, initiated by parliamentary demands, was sometimes relevant in limiting or reversing the predominance of executives. For example, Wiesner argues that executive drift in economic governance in Germany could only be avoided because of MPs’ complaints to the Federal Constitutional Court. In trade policy, Fasone and Romaniello argue that the strategy by parliamentary minorities to ask constitutional courts to review ex ante the constitutionality of the CETA contributed to the increasing pressure for greater information and scrutiny rights. At the European level, the EP’s activism in challenging the Council and the Commission before the CJEU has also been identified in the chapters in this volume as relevant parliamentarisation pathways of trade policy, CFSP and AFSJ.

C. Assessment As the Epilogue by Peter Lindseth reminds us, any assessment of the appropriateness of the executive–legislative balance in the EU depends on the assumptions about the nature of the EU and its degree of constitutionalisation. The authors in this volume had the freedom to define the benchmarks for judging the desirable balance between

14  Diane Fromage and Anna Herranz-Surrallés executive and legislative actors. Despite their sometimes different perspectives on the EU’s democratic yardsticks, most contributions conclude that there is still scope (and a need) for reducing the imbalance towards parliaments, and put forward concrete proposals towards that goal. In so doing, the chapters do not shy away from acknowledging the potential side-effects of parliamentarisation, for example, in terms of the increased complexity and lengthiness of EU procedures (see, eg, the chapters by Christiansen and Lange, Zbíral and Grinc, and Weiss), possible obstructionism by parliaments (see, eg, the chapters by Fasone and Romaniello, and Tacea) or the risk of increasing informality of parliamentary scrutiny (see, eg, the chapter by Tacea). However, most chapters argue that further recalibration is still necessary, not only to fulfil the procedural standards of representative democracy, but also to maintain the social acceptability of the EU policies in so-called post-functional times, when public support cannot be taken for granted. The chapters on the implementation of EU law are illustrative in this regard. For example, Fromage argues that, far from being an element of inefficiency, the involvement of NPs in transposition can contribute to the best-suited transposition and prevent gold-plating dynamics. In that regard, Zbíral and Grinc also make the case that the fact that the UK was the only case where executive implementation of EU law was pervasive and might have fostered the public perception of EU law as an imposition. Also at the EU level, Christiansen and Lange argue that involving the EP in apparently technical decisions involving citizens is ‘essential in order to maintain the legitimate functioning of the system’. The assessments and recommendations advanced by several authors in this volume also come back to the multi-level character of EU democracy. For example, Bursens makes the case for ‘multi-level parliamentarism’, which would imply the ‘nationalisation of European parliamentary representation’ via the creation of a new EU first chamber composed of national parliamentarians, and the ‘Europeanisation of NPs’, with a battery of proposals to make them more active players at the EU level. Similarly, Griglio presents concrete mechanisms to strengthen parliamentary oversight of the European Council at the European and national levels, and makes the case for stronger interparliamentary cooperation as a way of strengthening existing lines of accountability. The chapters on trade policy also provide good examples that mutually reinforcing relations between European and national parliaments are possible and desirable, showing how parliaments could learn from each other and act as a ‘collective pressure group’ (see the chapter by Fasone and Romaniello, and also that by Meissner and Rosén). However, the chapters in this volume are also a reminder that the interdependency across parliaments and levels of parliamentary representation is not always mutually reinforcing. For example, Márton warns about the tendency towards the reinforcement of the EP in trade policy to the detriment of NPs, with the Commission’s plans to split investment and trade agreements. Wiesner offers a good illustration of how in the context of the eurozone crisis, NPs of donor states gained power to the detriment of NPs of debtor states, while Lupo, in his analysis of executive–legislative relations in Italy, warns that, in light of Article 10 TEU, the reinforcement of executive dominance in one Member State has repercussions for the whole EU democracy and the development of the European integration process. In sum, this volume highlights as well that executive–legislative (im)balances across levels also have an impact on the good functioning of the wider parliamentary field.

Introduction  15

V.  The Way Forward Ten years after the entry into force of the Lisbon Treaty, which supposedly strengthened the role of parliaments within the EU, no clear tendency emerges across the board, either in favour of a full compensation of the executive predominance which had existed until 2009 or in favour of its reinforcement. Rather, the balance between executive and legislative powers in EU affairs is still fragile and volatile, as it is particularly sensitive to changes and especially to crises. Indeed, in emergency situations, including in the current Covid-19 pandemic, European (and even more so national) executives become the main, if not the sole, decision-makers. In other words, as soon as a crisis arises, the EU turns back to the intergovernmental mode characteristic of ordinary international organisations, and it does away with the (close) involvement of the European and national parliaments that may otherwise exist. However, in ordinary times, even if variations are visible across policy areas and even if executive predominance still exists, it appears that NPs and the EP are not as sidelined as they used to be in the past. As argued by Lindseth in the Epilogue, perhaps this executive predominance cannot be fully compensated, since the EU continues to operate under the ‘as-if ’ myth of a democratic system without a legislature in its own right. Moreover, the situation within the EU must also be examined against a background which is generally characterised in Western democracies by the increasing predominance of executive agents, including at a domestic level. But perhaps these are not the only obstacle to the EU operating as a true democracy in which parliaments and executives are on an equal footing, which is a goal worth pursuing per se because of the EU’s supranational and not merely intergovernmental nature. As long as national executives in the Council (and, to some extent, in the European Council) have the final word in decision-making procedures, and especially as long as constitutional decisions such as budgetary matters and also Treaty changes are governed by unanimity among representatives of the Member States, parliamentary democracy is deemed to remain imperfect. As the Covid-19 crisis – which appears to have shaken the EU institutional order and the relationship between the EU and its Member States to their very foundations – is in full swing at the time of writing, making an overall prognosis as to the future direction of EU executive–legislative relations is particularly risky. However, it is certain that this crisis will re-open debates on a number of issues affecting the executive–legislative balance. First, the Covid-19 crisis, like the eurozone crisis before it, has blatantly underlined the impossibility of continuing to have a European Economic and Monetary Union in which the monetary policy is fully administered at the EU level, whereas the economic and fiscal policies are only coordinated among the Member States. As argued by Lindseth, this crisis could serve as a catalyst for some form of supranationalised fiscal capacity, which would finally require a genuine constitutional legislature. Second, the coronavirus outbreak has arguably shown that when confronted with an exogenous dramatic crisis, the Member States have no choice but to form a united bloc towards the rest of the world. This might re-activate the calls initiated by the Juncker Commission to further extend qualified majority voting in the realm of EU foreign policy, a demand long favoured by the EP.49 Lastly, it can already be concluded 49 European Commission, ‘A stronger global actor: a more efficient decision-making for EU Common Foreign and Security Policy’ COM (2018) 647 final, 12 September.

16  Diane Fromage and Anna Herranz-Surrallés with a certain degree of certainty that the Covid-19 crisis will lead to the reinforcement of the role of the European Commission, if only because it will be administering a large part of the massive funding the EU intends to mobilise to foster economic recovery. But at a moment when support for the EU falters again, particularly in the Member States most strongly affected by the pandemic,50 it will be necessary to revert emergency politics and reconnect parliaments in the management of the post-pandemic period. For example, it is in this context that the EP is again pushing to acquire a formal right of initiative, which could also re-open the debate on the NPs’ ‘green card’.51 Parliaments could also seize the opportunity to play a more central role in defining the priorities of the EU recovery fund or, in the case of the EP, in prioritising the secondary objectives upon which the European Central Bank operates.52 All in all, therefore, the first decade after the entry into force of the Lisbon Treaty has also shown the shortcomings inherent in the system of democratic legitimacy that this Treaty had introduced for the first time. Admittedly, the Union designed some 20 years ago at the time when the Convention for the Future of Europe started to operate was only remotely similar to the Union, and the global context, in which we live today. Voices in favour of a reform of the Treaties have become heard again in recent times, and if these intentions were to materialise, this should undoubtedly be used as an opportunity to remedy (some of) the shortcomings which have become evident in practice, not least during the latest crisis. In the meantime, and as long as the EU’s institutional order continues to be composed of a mix of strongly intergovernmental and genuinely supranational organs, the only ways in which an effective and long-lasting rebalancing of the relationship between executive and legislative powers can occur is by incentivising national and European parliamentarians to use the instruments they have at their disposal and by fostering cooperation between NPs and across parliamentary levels.

50 While official Eurobarometer polls after Covid-19 are not yet available, some polls indicate a sharp increase in Eurosceptic views in Italy and a generalised deterioration of the confidence in the EU in other countries. See, eg, Euronews, ‘COVID-19 Has “Weakened” the Case for the EU, Say Germans, French and Italians’, 27 May 2020, https://www.euronews.com/2020/05/26/covid-19-has-weakened-the-case-for-the-eu-say-germans-frenchand-italians; S Vergine, ‘Coronavirus: Are Italians Losing Faith in the EU?’, BBC, 17 May 2020, https://www.bbc. com/news/world-europe-52666870. 51 For a call for the EP’s right of initiative in the context of Covid-19, see A. Tajani, ‘EU Must Take Advantage of the Coronavirus Crisis to Reform What is Needed’, The Parliament Magazine, 4 June 2020. 52 For a call in favour of the potential role of the EP in prioritising the secondary objectives of the ECB, see G Claeys, ‘The European Central Bank in the COVID-19 Crisis: Whatever it Takes, within its Mandate’, Bruegel, 20 May 2020.

part i Executive–Legislative Relations from a Multi-level Perspective

1 Recalibration of Executive–Legislative Relations in the European Union Strategies Inspired by the Trilemma of Democracy, Sovereignty and Integration PETER BURSENS

I.  Introduction: The EU as an Incomplete and Underperforming Representative Democracy The European Union (EU) can be defined as a well-developed political system. Although it is not a fully fledged federal state, it resembles many features of such a state, including the design of its democratic institutions.1 In the Lisbon Treaty, the Member States define the EU as a representative democracy (Article 10(2)), which is operationalised as a parliamentary system at multiple levels of government. This qualification is a deliberate choice as government by the people through representation is just one of the many ways to achieve input legitimacy.2 Other types of input legitimacy also occur in the EU, but are not, or at least far less prominently, put forward. Functional legitimacy through the participation of interest groups and civil society organisations in EU policy-making3 is promoted by the Commission White Paper on European Governance (2001) and is regarded by some authors as a tool to increase legitimacy.4 Furthermore, administrative legitimacy or representative bureaucracy is sometimes propagated as contributing to input legitimacy,5 to the extent that EU civil servants ‘think like their wider community’.6 Finally, direct representation through 1 A Follesdal and S Hix, ‘Why There is a Democratic Deficit in the EU’ (2006) 44 Journal of Common Market Studies 533. 2 FW Scharpf, ‘Legitimacy in the Multilevel European Polity’ (2009) 1 European Political Science Review 173. 3 B Kohler-Koch, ‘Civil Society and EU Democracy: “Astroturf ” Representation?’ (2010) 17 Journal of European Public Policy 100. 4 B Fink, ‘Civil Society Participation in European Governance’ (2007) Living Reviews in European Governance 2; J Greenwood and K Tuokko, ‘The European Citizen’s Initiative: The Territorial Extension of a European Political Sphere?’ (2017) 18 European Politics and Society 166. 5 J Olsen, ‘Maybe it is Time to Rediscover Bureaucracy’ (2014) 16 Journal of Public Administration Research and Theory 1. 6 S Murdoch, S Connolly and H Kassim, ‘Administrative Legitimacy and the Democratic Deficit of the European Union’ (2017) 25 Journal of European Public Policy 38.

20  Peter Bursens referendums or petitions (such as the European Citizens’ Initiative) may help to enhance the EU’s input legitimacy, but such tools are also widely contested.7 Representative democracy is not only explicitly envisaged in the Lisbon Treaty, it is also seen by many authors as a crucial building block of the democratic design of the EU. Parliamentary representation is often conceived as the most effective way of reaching political equality and public deliberation,8 which in turn are considered as crucial conditions for democratic legitimacy.9 In addition, such parliamentary representation should be established across levels to correspond with the multiple layers of governance of the EU.10 The importance attributed to parliamentary representation in legitimising the EU implies a central and crucial role for legislatures in EU decision-making. However, as I have argued elsewhere, both the design and the day-to-day political practice of the EU point to the opposite, ie, to the dominance of executive actors, at each of the governmental layers.11 A whole range of developments sideline parliamentary actors at the European and national levels.12 The European Council has developed a de facto agenda-setting role in legislative policy-making,13 the European Commission increasingly uses a set of executive measures (such as delegated acts and Open Method of Coordination procedures),14 and non-majoritarian institutions have been granted substantial and often autonomous decision-making powers (the European Central Bank being the major example).15 Overall, the multi-level nature of the EU has granted executive actors a strategic advantage vis-a-vis legislative actors.16 The strengthened position of the European Parliament (EP) only partially compensates for this executive dominance. The EP enjoys co-decision powers in most policy domains as well as shared budgetary powers with the Council, but it still lacks the right to initiate legislation. The EP also struggles to control the Council and the European Council as Member States find it hard to accept that a truly European institution

7 A Auer, ‘The People Have Spoken: Abide? A Critical View of the EU’s Dramatic Referendum (In)experience’ (2016) 12 European Constitutional Law Review 397; Greenwood and Tuokko (n 4). 8 B Crum and J Fossum, ‘The Multilevel Parliamentary Field: A Framework for Theorizing Representative Democracy in the EU’ (2009) 1 European Political Science Review 249. 9 R Bellamy and S Kröger, ‘Europe Hits Home: The Domestic Deficits of Representative Democracy in EU Affairs’ in T Evas, U Liebert and C Lord (eds), Multilayered Representation in the EU (Baden-Baden, Nomos, 2012). 10 J Fossum and M Jachtenfuchs, ‘Federal Challenges and Challenges to Federalism: Insights from the EU and Federal States’ (2017) 24 Journal of European Public Policy 467. 11 P Bursens, ‘The EU’s Multilevel Parliamentary System: Escaping from the Trilemma of Market Integration, National Democracy and National Sovereignty’ in G Abels and J Battke (eds), Regional Governance in the EU. Regions and the Future of Europe (Cheltenham, Edward Elgar, 2019). 12 P Bursens and AL Högenauer, ‘Regional Parliaments in the EU Multilevel System’ (2017) 23 Journal of Legislative Studies 127. 13 M Carammia, S Princen and A Timmermans, ‘From Summitry to EU Government: An Agenda Formation Perspective on the European Council’ (2016) Journal of Common Market Studies 54, 809. 14 GJ Brandsma and J Blom-Hansen, ‘Controlling Delegated Powers in the Post-Lisbon European Union’ (2016) 23 Journal of European Public Policy 531; N Nugent and M Rhinard, ‘Is the European Commission Really in Decline?’ (2016) 54 Journal of Common Market Studies 1199. 15 D Curtin, ‘Accountable Independence of the European Central Bank: Seeing the Logics of Transparency’ (2017) 23 European Law Journal 28; AL Högenauer and D Howarth, ‘The Democratic Deficit and European Central Bank Crisis Monetary Policies’ (2019) 26 Maastricht Journal of European and Comparative Law 81. 16 D Curtin, ‘Challenging Executive Dominance in European Democracy’ (2014) 77 Modern Law Review 1.

Recalibration of Executive–Legislative Relations in the European Union  21 exercises control over institutions that represent the Member States. Moreover, Member State parliaments are hardly mentioned in the Lisbon Treaty. True, national parliaments have been granted somewhat more powers in EU decision-making (especially via the ex ante subsidiarity control of the Early Warning System (EWS)), but these can only be exercised within the respective national contexts. National parliaments can control the positions of national governments in the (European) Council negotiations, but scrutiny mechanisms vary substantially, ranging from the Scandinavian parliaments, which can sometimes make use of a negative mandate, to the Belgian federal parliament, which only rarely scrutinises the position of the federal government.17 In short, the current institutional design and the way parliaments generally function within this design do not correspond with the EU’s aspirations of representative democracy. This chapter argues that this stems from the EU being caught in the trilemma of European integration, which is defined as the challenge to reconcile market integration, national sovereignty and national democracy. The next section presents this trilemma of European integration. It argues that the EU’s multi-level polity is unsatisfyingly legitimised, as it copes with this trilemma by favouring executives over legislatures. The discussion then examines the possible solutions to the trilemma and their respective expected effects on the recalibration of the balance between executive and legislative bodies. I argue that renationalisation may help to safeguard representative democracy at the national level, but is undesirable as it would destroy the positive effects of integration. I also assert that a full federalisation of the EU may one day install an EU-level representative democracy, but that this route is currently unlikely as it pre-supposes a – for the moment – underdeveloped and, for many European citizens, unpopular European demos. The chapter eventually finds multi-level parliamentarisation of the EU polity to be the more desirable and likely option to address the trilemma and rebalance the relationship between executives and legislatives. I explore the idea of a multi-level parliamentary system with a nationalisation of the European legislative (via the introduction of a specific type of bicameral EP) and the Europeanisation of national parliaments (through a focus on the EU at times of national elections, and increased debates and scrutiny by members of domestic parliaments). By exploring the effects of renationalisation, federalisation and multi-level parliamentarisation, the chapter addresses the first set of questions raised in the introduction to this volume – ie, whether changes in the institutional design and political practices at various levels can bring more balance in the relationship between EU executive and legislative actors.

17 T Raunio, ‘The Gatekeepers of European Integration? The Functions of National Parliaments in the EU Political System’ (2011) 33 Journal of European Integration 303; T Winzen, ‘National Parliamentary Control of European Union Affairs: A Cross-national and Longitudinal Comparison’ (2012) 35 West European Politics 657; C Hefftler, C Neuhold, O Rozenberg and J Smith (eds), The Palgrave Handbook of National Parliaments and the European Union (London, Palgrave Macmillan, 2015); G Abels and A Eppler (eds), Subnational Parliaments in an EU Multi-level Parliamentary System: Taking Stock of the Post-Lisbon Era (Innsbruck, Studienverlag, 2015); K Auel and T Christiansen, ‘After Lisbon: National Parliaments in the European Union’ (2015) 38 West European Politics 261; K Sprungk, ‘National Parliaments in the European Union’ (2016) 14 Comparative European Politics 177; Bellamy and Kröger (n 9).

22  Peter Bursens

II.  The Trilemma of Democracy, Sovereignty and Integration Liberalisation of trade between states triggers competition, specialisation and innovation, which all foster growth and wealth creation.18 The EU is the ultimate expression of trade liberalisation as it has established a single market that guarantees the free movement of goods, services, capital and people. To build, maintain and regulate such a common market, EU Member States have installed a multi-level political system in which they jointly exercise national sovereignty. Through the EU, Member States seek to integrate their economies while at the same time protecting their national interests and preserving their national democratic systems. In other words, Member States seek to combine European (market) integration, national sovereignty and representative democracy. However, reconciling these three aims is a huge challenge. It comes down to addressing a trilemma that Rodrik19 has introduced with respect to globalisation and that was later also applied to the Economic and Monetary Union (EMU) by Crum,20 to EU fiscal integration by Nicoli21 and to the EU’s regional level by Bursens.22 These authors have in common that they identified three phenomena – globalisation, democracy and identity – that have a hard time thriving simultaneously. I argue that a similar trilemma applies to the overall process of European integration. Member States have created a multi-level political system which ensures that integration happens in a way that pleases the national interests of the Member States, but does not necessarily also respect their representative democracies. More specifically, the political system put in place to overcome the trilemma favours executives over parliaments at the various levels of government. Examples of such executive dominance are numerous and have been enumerated in both the Introduction to this volume and the introduction of this chapter. Fabbrini argues that EU democracy is especially under pressure in intergovernmental policies that were – and still are – put into place to respond to the financial and sovereign debt crises, and to the security and migration challenges.23 He contends that these areas are now characterised by a confusion of powers (as opposed to a separation of powers) whereby the (European) Council performs both executive and legislative functions, which can only match with representative democracy in case of sufficient vertical accountability, ie, when national parliaments control their national governments. Fabbrini points out that in these areas, scrutiny happens at best through separate control by individual Member States, while the decisions are taken collectively at the EU level. Building on Fabbrini’s insights, I argue that supranational policies are also confronted with the challenges of representative democracy as not only is national-level parliamentary scrutiny on EU legislation often insufficient or even absent, but, in addition, the EP lacks powers vis-a-vis the Council and the Commission. Figure 1.1 depicts a variation of the trilemma of democracy, sovereignty and integration. The basic logic of the trilemma is that if one wants to preserve all three dimensions, one 18 N Potrafke, ‘The Evidence on Globalisation’ (2015) 38 The World Economy 509. 19 D Rodrik, The Globalization Paradox: Democracy and the Future of the World Economy (New York, Norton, 2011). 20 B Crum, ‘Saving the Euro at the Cost of Democracy?’ (2013) 51 Journal of Common Market Studies 614. 21 F Nicoli, ‘Democratic Legitimacy in the Era of Fiscal Integration’ (2017) Journal of European Integration, 39, 389. 22 Bursens (n 11). 23 S Fabbrini, ‘Intergovernmentalism in the European Union: A Comparative Federalism Perspective’ (2017) 24 Journal of European Public Policy 580.

Recalibration of Executive–Legislative Relations in the European Union  23 Figure 1.1  The trilemma of integration, sovereignty and democracy integration

sovereignty

national democracy

of them should somehow be reversed or at least substantially adjusted. First, democracy and sovereignty are hard to reconcile with market integration, but easier to reconcile with national autonomy over (economic) policies. Second, democracy combined with market integration does not match well with national sovereignty, but better with a European (federal) sovereign polity. Third, market integration and national sovereignty do not fit well with a mere collection of separate national representative democracies, but better with a Europeanised multi-level parliamentary system. In other words, for each combination of two dimensions, one can think of a way out by adjusting the third dimension. Renationalisation as opposed to integration could re-install full national-level representative democracy and strengthen the position of national parliaments within each sovereign nation state. Federalisation as opposed to keeping full sovereignty at the nation-state level would create a European-level representative democracy in which the executive and the legislative keep each other in balance at the EU level. Finally, multi-level parliamentarisation as an expression of representative democracy as opposed to national-level democracy could recalibrate the executive–legislative relationship by granting legislatives and the representatives therein the necessary tools to control executives within and across levels. The rest of the chapter considers these three routes to escape from the trilemma. It discusses their desirability and feasibility, and explores the effects that these solutions would have on the executive–legislative balance in the EU.

III.  Renationalisation: A Retreat to a Perfect National Parliamentary Democracy? The first option to escape the trilemma comes down to abandoning European (market) integration with the aim to preserve (parliamentary) democracy within the borders of sovereign states (see Figure 1.2). The call for such a radical reversal of the integration process stems from the observation that European integration has not been paired by a fair redistribution of the wealth generated by the opening of national economies to the common European market. While market integration has made the EU more prosperous on an aggregate level, it has also created winners and losers among and within the Member States. While some societal groups (in some Member States) work in highly competitive sectors that flourish in a single market, others have seen companies in their sector relocate within or even beyond the EU, or have been confronted with foreign competitors for their

24  Peter Bursens Figure 1.2  Renationalisation to escape from the trilemma integration

democracy

sovereignty

renationalisation

jobs. In addition, integration implies open borders and free movement of people within the single market. Some people may appreciate the way in which this has brought about an increasing mix of cultures, yet others perceive their national values to be under pressure, which is then considered as a threat to their identity. Those who suffer economically are often – but not always – the most inclined to feel threatened by cultural changes as well. In short, European integration has created a group of economically and culturally discontented citizens who have the feeling that executive actors such as the European Commission and the governments in the (European) Council insufficiently address their concerns and interests.24 These citizens demand a more fair redistribution of the wealth created by market integration through investment in social policies, education, employment and protection of their cultural identity through restrictive migration policies. Radical left-wing and right-wing populist parties have succeeded in mobilising citizens who feel economically and/or culturally deprived by the EU and its policies. They plead for protectionist policies, both economically and culturally, promise to fight for the ‘own’ losers of globalisation and envisage the restoration of national identity and democracy. The ultimate consequence of such a position equals the first escape route from the trilemma: the rejection of market integration and the re-establishment of national redistributive policies. Opponents of this inward-looking position would argue that this strategy is doomed to failure as protectionist policies will also largely destroy trade, ie, the very source of wealth creation that can eventually be redistributed. Fair and elaborate redistributive policies are more likely in a polity that disposes of the financial means to redistribute or, even better, in a polity that has growing means to do so. In other words, fair redistribution thrives better in times of economic growth, which, according to consensual knowledge among economists, can better (if not only) be achieved and sustained by shaping a context that fosters international trade, ie, via EU market integration.25 Pro-integration parties also

24 S Hobolt and C de Vries, ‘Public Support for European Integration’ (2016) 19 Annual Review of Political Science 413. 25 Potrafke (n 18).

Recalibration of Executive–Legislative Relations in the European Union  25 argue that renationalisation efforts could provoke trade disputes or even (trade) wars, ultimately putting the stability of Member States’ democratic institutions and redistributive policies at risk.26 Apart from being rather undesirable from an economic point of view, the option of renationalisation would not automatically ensure a remedy to recalibrate the executive– legislative balance. Abandoning the multi-level complexity of European integration would obviously simplify the challenge to balance government and parliament. However, a retreat to the nation state would not necessarily equal perfect parliamentary democracy with full legislative control and participation in decision-making. Institutional reforms putting parliaments at the heart of the respective national systems and a change of attitude of members of parliament would be needed to ensure substantive parliamentary democracies. In other words, a state that refrains from trade relations or integration does not have to cope with the challenges of multi-level representation, but still needs to get its representative act together within its system. However, it remains doubtful as to whether representative democracy can be fully achieved in a situation of closed borders and economic protectionism. Indeed, EU Member States that have been sceptical about integration have also been those that have been curtailing parliamentary opposition and other democratic features (such as free press and independent judiciaries). It seems that the rejection of European-level democratic institutions even correlates with a negative attitude towards national representative democracy.

IV.  Federalisation: A Leap Forward to Perfect European-Level Democracy? The second option requires the creation of representative democracy at the European level. It implies preference for the European level over the national level as the locus for democratic politics. The logic of the trilemma finds this implausible as it regards the nation state to be the natural level that can be rendered truly democratic. The argument is that democracy requires a political system to coincide with the demos it governs. Taking this argument further, the trilemma could only be solved at the European level if the EU evolves into a fully fledged federation based on a single European demos (see Figure 1.3). European federalists argue for such a radical reform of the EU. This could reshape the EU into a multi-level parliamentary democracy by granting the EP full powers, including the right to initiate legislation and to control the European executive. This implies that the European Commission would be turned into a government accountable before the EP and to limit the status of the Council to one of the two parliamentary chambers. More specifically, this option would require an EU-level bicameral legislative with one directly and one indirectly elected chamber, the EP and the Council respectively. The Council would not have to be reformed as the current composition and legislative competencies already very greatly resemble the ‘first chambers’ or senates of federal states. However, the EP would need to be

26 EU Petersmann, ‘The 2018 Trade Wars as a Threat to the World Trading System and Constitutional Democracies’ (2018) 10 Trade, Law & Development 179.

26  Peter Bursens Figure 1.3  Federalisation to escape from the trilemma integration

sovereignty

federalisation

democracy

fully Europeanised. Today, EP elections are organised via national constituencies, entailing that national political parties and national party systems are the constitutive features of EU representative democracy, while a federalisation of the EP would require the creation of one single European constituency, with EU-wide political parties submitting a single list of candidates all over the EU. Such a big leap forward towards a European federal state presents the opportunity to start from scratch. It would entail drawing a blueprint of a genuine European-level parliamentary democracy. But it does not necessarily mean that the theory would be implemented in practice, leaving the European federation behind with an incomplete balance between the legislative and the executive, as is the case in existing federal states. Federalisation as escape from the trilemma offers the possibility but not the guarantee of high-quality parliamentary democracy. Despite the opportunity to recalibrate the executive–legislative balance, even a successful Europeanisation has drawbacks as well, for instance, in terms of languages, a fair chance for candidates from smaller Member States and the assumption of a – not yet existing – EU-wide party system with strongly integrated EU-wide parties. The creation of such a federal polity might in the long term make citizens of the Member States accept supranational parliamentary democracy, identify with the EU and hence possibly also render the EU a political system in which representative democracy can thrive. However, in the short term, such a radical reform seems to be unacceptable for a large share of the European electorate: even the most ardent supporters of European integration are not necessarily in favour of a federal Europe.27 In other words, an elitist move towards a federal EU-level parliamentary democracy may not be easily accepted as legitimate by the citizens of this new polity. It is also doubtful whether a single European demos can ever be induced by institutional engineering. And until the development of a European-wide demos, giving the EP full parliamentary control over integrated policies is no legitimate option. This conclusion stems from the idea that some form of identity is necessary for democracy.28 Fabbrini argues in this respect that structural asymmetry and cultural differences between Member States make it very hard to implement a fully federal system.29 In addition, opening negotiations

27 European Commission, Standard Eurobarometer 89 (2018), https://ec.europa.eu/COMMFrontOffice/publicopinion/index.cfm. 28 JHH Weiler, ‘Federalism without Constitutionalism: Europe’s Sonderweg’ in K Nicolaidis and R Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (Oxford, Oxford University Press, 2001). 29 S Fabbrini, ‘The European Union and the Puzzle of Parliamentary Government’ (2015) 37 Journal of European Integration 571.

Recalibration of Executive–Legislative Relations in the European Union  27 on Treaty reform means opening the discussion about the EU polity itself. Fossum rightly points out that when the institutional reform process itself would be contested, the process also needs to happen in a democratic way.30 Such politicisation of the polity itself may also result in reversing European integration and bringing back protectionist policies,31 which may become counterproductive when seeking to increase wealth that can be used for redistributive ends.

V.  Multi-level Parliamentarisation: Activating Parliaments and Representatives within and Across Levels The third option seeks to reconcile European integration and parliamentary democracy with the existence of multiple sovereign demoi. If the EU is the most appropriate polity to generate and redistribute wealth, citizens of EU Member States must be able to question EU policies by making use of their national representative channels.32 This raises the question of whether the trilemma can be solved by creating structural relations between parliaments across levels or by incorporating the European dimension in national parliamentary arenas,33 and ultimately how this would affect the executive–legislative balance in the EU. Both strategies start from the premise that electorates must have the opportunity to evaluate policies that affect them, as well as to judge the executives deciding on these policies. Currently, neither the European Commission, nor national representatives in the (European) Council, nor autonomous institutions such as the European Central Bank are adequately scrutinised by parliamentary bodies, whether at the European or the national level.34 In EP elections, citizens hardly judge European policies that have redistributive effects (such as the choice between budget cuts and public investments). EP election

Figure 1.4  Multi-level parliamentarisation to escape from the trilemma integration

multilevel parliamentarisation sovereignty

democracy

30 J Fossum, ‘Democratic Federalization and the Interconnectedness-Consent Conundrum’ (2017) 24 Journal of European Public Policy 486. 31 S Bartolini, Restructuring Europe: Centre Formation, System Building, and Political Structuring between the Nation State and the European Union (Oxford, Oxford University Press, 2005). 32 H Kriesi, ‘The Role of European Integration in National Election Campaigns’ (2016) 8 European Union Politics 83. 33 A Benz, ‘Patterns of Multilevel Parliamentary Relations: Varieties and Dynamics in the EU and Other Federations’ (2017) 24 Journal of European Public Policy 499. 34 Hefftler (n 17); M Shackleton, ‘Transforming Representative Democracy in the EU? The Role of the European Parliament’ (2017) 39 Journal of European Integration 191.

28  Peter Bursens campaigns primarily discuss Member States’ competences and far fewer cover policy options made at the European level,35 while national electoral campaigns largely deal with policies on which national parliaments have only a limited say.36 It is sometimes argued that this is not a democratic problem as long as national governments, which co-decide upon EU legislation in the Council, are controlled by their national parliaments.37 This, however, is only effectively the case in a small number of Member States (cf section I above). As a result, EU-level executive actors are hardly forced to defend their policy choices at election time. It makes the EU void of substantive democracy: voters are not offered alternative options regarding policies or office holders.38 Can one think of institutional reforms that would bring the EU closer to substantive democracy? The following paragraphs explore whether and how a multi-level parliamentary system constitutes a way out of the trilemma by offering a counterbalance for the already expanded multi-level organisation of the executives.

A.  Nationalisation of European-Level Parliamentary Representation Elsewhere, I argued that the challenge of a true multi-level parliamentary system is to connect national parliamentary democracies with EU-level representative democracy.39 This strategy follows Weiler,40 who argues that the EU ultimately needs to base its legitimacy on the Member States’ democratic institutions, and Bellamy and Kröger,41 who plead for giving Member State parliaments a more prominent place in the multi-level system of the EU. One way to connect the national level and the EU level is through the creation of an indirectly elected ‘first’ chamber or Senate at the EU level composed of parliamentarians that originate from the Member States parliaments. Several types of such a ‘first’ chamber exist in federal states, but most of them do not fit with the way in which the EU is set up.42 The American, Mexican and Swiss systems in which the members of the first chamber are directly elected by the electorates of the constituting states do not fit the EU as this would duplicate the current EP. The Canadian model in which the members of the Senate are appointed by the federal government is equally hard to apply to the EU, as there is no European federal government and as the link with the Member States, which is key to the argument, would be absent. The German model, in which the members of the first chamber

35 H Schmitt and E Teperoglou, ‘The 2014 European Parliament Elections in Southern Europe: Second-Order or Critical Elections?’ (2015) 20 South European Society and Politics 287. 36 P Mair, ‘The Limited Impact of Europe on National Party Systems’ (2000) 23 West European Politics 27; R Senninger and M Wagner, ‘Political Parties and the EU in National Election Campaigns: Who Talks about Europe, and How?’ (2015) 53 Journal of Common Market Studies 1336. 37 A Moravcsik, ‘In Defense of the “Democratic Deficit”: Reassessing Legitimacy in the European Union’ (2002) 40 Journal of Common Market Studies 603. 38 EE Schattschneider, The Semi-sovereign People (New York, Holt, 1960). 39 Bursens (n 11). 40 JHH Weiler, ‘In the Face of the Crisis: Input Legitimacy, Output Legitimacy and the Political Messianism of European Integration’ (2012) 34 Journal of European Integration 825. 41 R Bellamy and S Kröger, ‘Beyond a Constraining Dissensus: The Role of National Parliaments in Domesticating and Normalising the Politicization of European Integration’ (2016) 14 Comparative European Politics 125. 42 RL Watts, ‘Federal Second Chambers Compared’ in R Hrbek (ed), Legislatures in Federal Systems and Multi-level Governance (Baden-Baden, Nomos, 2010).

Recalibration of Executive–Legislative Relations in the European Union  29 come from Member State governments, matches the current composition of the Council of Ministers and therefore is not applicable to an additional first chamber either. The Austrian example, in which the parliaments of the states select the first chamber’s members from amongst their membership, is the most inspiring as it would tie the national level to the European level by putting national-level parliamentarians in the EU-level legislative. This mechanism offers a way out of the trilemma by activating national parliamentary democracies at the European level. The Austrian senate resembles the Common Assembly (the predecessor of the current EP), which was indeed composed of representatives of national parliaments.43 Hill argues that such a system also existed in the US prior to 1916, ie, in the earlier years of American federalism,44 suggesting that such a first chamber could be a necessary step towards a more mature federation. In fact, Joschka Fisher, the German Foreign Affairs Minister, floated the idea at the time of the European Convention, but the Constitutional Treaty and later also the Lisbon Treaty did not include the proposal and introduced the EWS as an alternative to boost the involvement of Member State parliaments.45 However, in terms of the recalibration of executive–legislative relations, an EU-level chamber composed of national representatives may increase parliamentary control. Executives will be faced with two chambers representing the citizens of the EU directly (the second chamber, ie, the EP) and indirectly (the first chamber). The executive– legislative balance would be more even when this bicameral EU-level parliament is granted the right to initiate legislation. Leaving this right with the European Commission would keep the initiative for redistributive policies at the European executive level. Such a status quo would not deliver on the idea that Member States’ parliamentary arenas should be the prime locus for discussing the nature and consequences of market integration. Next, the new parliamentary chamber should also take over the budgetary competence from the Council and exercise this jointly with the EP, as decisions on the budget heavily affect redistributive policies and therefore belong at the heart of democratic majoritarian decision-making. Of course, one might question the feasibility of pulling away legislative initiative and budgetary competence from the Commission and Member State governments respectively, as such decisions at the European level effectively determine the playing field of national governments’ policies. Yet, the introduction of such a first chamber also triggers some tough questions.46 The composition of this chamber would alter according to the calendar of Member States’ parliamentary elections, making its majority unstable and potentially undermining its position vis-a-vis the executive. In addition, the EU is already equipped with a (not Austrian-like but German-like) bicameral system in the areas where co-decision applies. Adding a third

43 T Piketty, ‘Reconstruire l’Europe après le Brexit’ (2016), https://www.lemonde.fr/blog/piketty/2016/06/28/ reconstruire-leurope-apres-le-brexit. 44 S Hill, ‘Europe 2.0: A Blueprint for Redesigning European-Level Parliamentary Democracy’ (2012), https:// www.steven-hill.com/europe-2-0-a-blueprint-for-redesigning-european-level-parliamentary-democracy. 45 C Fasone and D Fromage, ‘From Veto Players to Agenda-Setters? National Parliaments and Their “Green Card” to the European Commission’ (2016) 23 Maastricht Journal of European and Comparative Law 294; E Miklin, ‘Beyond Subsidiarity: The Indirect Effect of the Early Warning System on National Parliamentary Scrutiny in European Union Affairs’ (2017) 24 Journal of European Public Policy 366. 46 Bursens (n 11).

30  Peter Bursens chamber would increase complexity, possibly destroying the gains at the input side by less transparency and effectiveness at the output side. Next, any joint engagement of national parliaments depends on the nature of the respective domestic executive–legislative relations. EU Member States are mostly parliamentary systems ‘inviting the fusion of executive and parliamentary majority’47 – ie, having high party discipline and loyalty of the parliamentary majority to the executive. This means that collective action among parliaments when controlling EU policies of national governments is not very likely, though perhaps more plausible if second chambers (senates) would take up this role. One could also think of replacing the current Council with the new chamber of national parliament representatives, but this is highly unfeasible as it would make Member State governments lose substantial control over EU legislation. A less radical variation would be to keep the Council of Ministers and make it only competent for executive or even only regulatory issues, while legislation with a redistributive nature (eg, policies involving subsidies and investment) would become the competence of the new chamber of national parliamentarians, together with the EP. The argument for this solution stems from the idea that redistributive policies should find their origin in national parliamentary systems discussing how the effects of market integration should be dealt with. Finally, all options discussed require Treaty reform, while such reform has been regarded as undesirable because it may politicise the polity instead of the policies of the EU. Overall, and despite the concerns formulated in the previous paragraphs, the (partial) replacement of the Council by a parliamentary chamber would have the advantage of rebalancing the relationship between the executive and the legislative. The current situation is ambiguous as the EP only partially controls the Commission. The EP approves the composition of the full Commission, but individual Commissioners do not have individual political responsibility and, more importantly, the EP cannot bring down the Commission in the event that a parliamentary majority disagrees with the Commission’s policy proposals. The EP possesses even fewer tools to control the Council or the European Council. The argument is that the principle of national sovereignty does not allow for political control by a supranational legislative body (the EP) over an executive body (the Council) that represents the will of national electorates. Attributing the political control of a body that is composed of not directly EU-wide elected, but nationally elected parliamentarians (hence a joint national rather than a supranational chamber) may be considered as a more feasible – horizontal rather than vertical – way of enhancing the parliamentary power vis-a-vis the executives of the EU polity.

B.  The Europeanisation of National Parliamentary Arenas An alternative way to strengthen parliamentary representation in the EU, and hence to recalibrate the relationship between legislatives and executives, is the Europeanisation of national parliamentary democracy.48 Mair and Thomassen argue that copying the national 47 N Bolleyer, ‘Executive-Legislative Relations and Interparliamentary Cooperation in Federal Systems: Lessons for the European Union’ (2017) 24 Journal of European Public 520. 48 R Bellamy and D Castiglione, ‘Three Models of Democracy, Political Community and Representation in the EU’ (2013) 20 Journal of European Public Policy 206.

Recalibration of Executive–Legislative Relations in the European Union  31 system of democratic representation and democratic government over to the European level will not work.49 By only representing and not governing (or controlling the governing bodies) at the EU level, parties will fail to be the link between citizens’ preferences and public policy. Giving the EP a more controlling role will not work if the division of tasks between parliament and governmental bodies is not properly institutionally defined; nor will a presidential system (directly electing the Commission President), as this will grant the Commission President too much legitimacy, which would be unacceptable for substantial parts of the European electorate.50 Therefore, the national parliaments rather than the EP are the first place to look when aspiring to rebalance executive–legislative relations. As such, the following paragraphs look at individual national parliaments, in addition to the collective behaviour of national parliaments, as potential rebalancing strategies.51 First, Europeanising national-level elections can be helpful to make the EU a more substantive democracy. This is quite a challenge as even European elections are often characterised as second-order elections.52 If even European elections are not fully European, then how could national elections become more European? There are several strategies to decrease the second-order risks at the EU level which can also be applied to this reversed second-order context:53 a vote choice for the EP is more likely to be shaped by EU issues in the case of increased politicisation,54 increased salience of EU issues55 and more information on EU issues.56 Similarly, a vote for the national parliament that is based on the understanding that most national competences stem from the EU becomes more likely in the case where the national campaign focuses on the European level. Salience of the EU, of course, pre-supposes that the EU is politicised by candidates (not only by Eurosceptic parties)57 ie, that they take explicit positions on EU policies, provoking debates that can be covered by mass media.58 49 P Mair and J Thomassen, ‘Political Representation and Government in the European Union’ (2010) 17 Journal of European Public Policy, 20. 50 European Commission (n 27). 51 I Cooper, ‘The Politicization of Interparliamentary Relations in the EU: Constructing and Contesting the Article 13 Conference on Economic Governance’ (2016) 14 Comparative European Politics 196; B Crum, ‘Parliamentary Accountability in Multilevel Governance: What Role for Parliaments in Post-crisis EU Economic Governance?’ (2017) 25 Journal of European Public Policy 268. 52 R Corbett, ‘“European Elections are Second-Order Elections”: Is Received Wisdom Changing?’ (2014) 52 Journal of Common Market Studies 1194; Schmitt and Teperoglou (n 35); HG Boomgaarden, D Johann and S Kritzinger, ‘Voting at National versus European Elections: An Individual Level Test of the Second Order Paradigm for the 2014 European Parliament Elections’ (2016) 4 Politics and Governance 130. 53 L Thorlakson, ‘Representation in the EU: Multilevel Challenges and New Perspectives from Comparative Federalism’ (2017) 24 Journal of European Public Policy 544. 54 S Hobolt, JJ Spoon and J Tilley, ‘A Vote against Europe? Explaining Defection at the 1999 and 2004 European Parliament Elections’ (2009) 39 British Journal of Political Science 3. 55 C de Vries, W van der Brug, M Egmond and C van der Eijk, ‘Individual and Contextual Variation in EU Issue Voting: The Role of Political Information’ (2011) 30 Electoral Studies 28; S Hix and M Marsh, ‘Punishment or Protest? Understanding European Parliament Elections’ (2007) 69 Journal of Politics 495; Hobolt and de Vries (n 24). 56 S Hobolt and J Wittrock, ‘The Second Order Election Model Revisited: An Experimental Test of Vote Choices in European Parliament Elections’ (2011) 30 Electoral Studies 2. 57 H Kriesi, ‘The Role of European Integration in National Election Campaigns’ (2007) 8 European Union Politics 83. 58 C Karlsson and T Persson, ‘The Alleged Opposition Deficit in European Union Politics: Myth or Reality?’ (2018) 56 Journal of Common Market Studies 905.

32  Peter Bursens Second, transforming national parliaments into multi-arena players59 can contribute to a recalibration of executive–legislative relations as it would add the additional involvement of parliaments in EU policy-making. First, national parliaments can engage more often and more strategically in the use of the EWS. While the EWS has only delivered three ‘yellow cards’ so far, it has also triggered increased attention and resources devoted to EU policies in general, especially in those parliaments that previously only moderately engaged in EU affairs.60 Parliaments and their members have become socialised in EU affairs as a spillover effect of the introduction of the EWS. Despite the limited substantial impact, simply activating the EWS and the related Political Dialogue would already trigger the salience of European politics within national parliaments. Next, national parliaments can commit to scrutinising the national executive more intensively, not only in European Affairs Committees but also in plenary sessions and sectoral committees.61 When national parliaments take up their constitutionally established right (or even duty) to scrutinise EU policies, national governments would be forced to take explicit positions on EU policies and defend these vis-a-vis members of parliament in an environment that is open to mass media coverage and public attention. Kröger and Bellamy call this strategy the domestication and normalisation of EU politics in national parliaments.62 Of course, there are downsides to this strategy as well.63 Benz points to the following dilemma.64 Majority parties in Member State parliaments can try to control the positions that the national executive takes at the European level, but they cannot push too hard as this would risk jeopardising the negotiation position of the executive. Opposition parties in national parliaments, on the other hand, need to challenge the executive, but equally cannot go too far in order not to get blamed for sabotaging the national executive’s position. Second, a Europeanisation of national parliaments may keep the debate locked within the individual Member States, which runs the risk that national concerns will determine the outcome of the discussion. Such a focus on national interests may force the Member State governments to pursue these national interests in the (European) Council. When unanimity is required, deadlock may then occur more often than when unanimity is not required or with less national parliamentary scrutiny. In short, Europeanising the national parliamentary level can be a tool to bring the EU polity closer to a substantive democracy, respecting national representative democracy as a cornerstone of the EU polity while at the same time allowing for market integration. While a few pitfalls need to be avoided, this is nevertheless a promising strategy when seen from the trilemma perspective. When national parliaments take up their role regarding EU policies, they can escape from the trilemma and engage in recalibrating their relationship with national governments. 59 K Auel and C Neuhold, ‘Multi-arena Players in the Making? Conceptualizing the Role of National Parliaments since the Lisbon Treaty’ (1997) 24(10) Journal of European Public Policy 1547. 60 Miklin (n 45). 61 K Gatterman, AL Högenauer and A Huff, ‘Research Note: Studying a New Phase of Europeanisation of National Parliaments’ (2016) 15 European Political Science 89. 62 S Kröger and R Bellamy, ‘Beyond a Constraining Dissensus: The Role of Domestic Parliaments in Domesticating and Normalizing the Politicization of European Integration’ (2016) 14 Comparative European Politics 131. 63 Bursens (n 11). 64 Benz (n 33).

Recalibration of Executive–Legislative Relations in the European Union  33

VI.  Conclusion: Towards a Multi-level Playing Field? The editors of this volume correctly claim that the relationship between executives and legislatives in the EU is unbalanced. Taking the self-definition of the EU as a representative democracy as a starting point, I explored avenues to recalibrate this relation. I amended the well-known trilemma between integration (necessary to create the wealth to redistribute), sovereignty (as the prime level to organise democracy) and representative democracy to evaluate several options to restore the balance between legislative and executive actors. From this analysis, I concluded that a retreat to the national arena (renationalisation) or a jump to the European arena (federalisation) can offer opportunities to enhance parliamentary powers to keep the executive in balance. However, both these avenues were discarded because they come with many pitfalls and practical implementation is far from reassured. I considered the nationalisation option as undesirable and the federalisation as unfeasible, at least in the short term. Instead, I developed multi-level parliamentarisation as an alternative third option. Despite some drawbacks, multi-level parliamentarisation was argued to be a more desirable and feasible escape route from the trilemma and hence a promising avenue for executive–legislative recalibration. More concretely, I concluded that the nationalisation of the EU-level parliamentary system (through the introduction of an EU-level chamber with representatives of national-level parliaments) and the Europeanisation of national parliamentary arenas (by making national-level parliaments active participants in EU policies) can bring the EU closer to a substantive democracy. Both approaches offer voters a choice between alternative candidates and policies, which is a pre-requisite to develop policies that can tackle the negative effects of market integration. I therefor conclude that turning parliaments and their members into multi-level players has the potential to put parliaments on a more equal footing with their executive opponents that have been organised in a multi-level way from the start of the European integration process. The democratic character of the EU would benefit greatly from creating a level playing field between parliaments and executives by installing a true ‘multi-level playing field’ for both branches of government

34

2 The Anticipation Function of Interinstitutional Agreements A Smooth Mechanism to Recalibrate Executive–Legislative Relations MARCO URBAN

I. Introduction The European Parliament (EP) has remarkably strengthened its position within the European Union (EU) institutional system among the European integration process.1 Every treaty reform has improved the powers of the EP in EU primary law. In this regard, we have observed a recalibration of the relations between the executive powers, namely the Council and the Commission, and the legislative power, namely the EP. This recalibration can be seen as the response found by the Member States to reduce the democratic deficit in the EU.2 More specifically, this recalibration can be observed in the context of the evolution of the EU primary law as it applies to the main decision-making processes set out by the Treaties. Indeed, within the framework of the legislative process or the procedure for concluding international agreements, amongst other procedures, the EP has acquired more prerogatives with each reform of the Treaties. This chapter analyses the role played by inter-institutional agreements (IIAs) on this evolution.3 In a broad sense, IIAs are potentially binding bilateral or trilateral agreements concluded by European institutions, which allow them to improve their cooperation to fulfil the objectives that are assigned to them by the Treaties.4 This definition also includes unilateral 1 On the evolution of the EP’s powers within the main decision-making processes set out by EU primary law, see, eg, A Héritier, C Moury, MG Schoeller, K Meissner and I Mota, ‘The European Parliament as a Driving Force of Constitutionalisation’, study commissioned by the policy department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, October 2015, 1–107; Y Mény, La construction d’un Parlement: 50 ans d’histoire du Parlement européen (Luxembourg, Publications Office of the EU, 2009) 1–303. 2 B Rittberger, ‘The Creation and Empowerment of the European Parliament’ (2003) 41 Journal of Common Market Studies 203. 3 For the sake of convenience, the generic term ‘IIA’ is used to denote acts which could be considered as agreements concluded by the institutions. However, it must be kept in mind that these acts can have other denominations (Framework Agreement, Code of Conduct, Joint Declaration etc). 4 For contributions dedicated to IIAs, see C Blumann, ‘Les accords interinstitutionnels’, JurisClasseur Europe, Fascicule 193, last updated on 27 July 2019; AM Tournepiche, Les accords interinstitutionnels dans l’Union

36  Marco Urban declarations made by an institution if they are intended to provoke a reciprocal reaction from another institution. As such, the notion of agreement must be understood in a sense that includes any exchange of reciprocal commitments tacitly or explicitly expressed by institutions.5 In practice, IIAs enable the institutions to give concrete expression to their collaboration by introducing cooperation mechanisms. In the academic literature, mainly in the political sciences field,6 these cooperation mechanisms are often referred to as informal procedures, as opposed to the procedures formally provided for in EU primary law. It should be added that these informal procedures may be binding for their signatory institutions, depending on the analysis made from a legal point of view. The way in which the EP strategically used IIAs to slowly extend its influence has already been pointed out by scholars.7 These agreements have generally allowed the Members of the European Parliament (MEPs) to introduce provisions that benefit their position in their inter-institutional relations with the Commission and the Council. Nevertheless, beyond the impact of their implementation, IIAs have also enabled the EP to influence the evolution of the EU primary law. In a broad sense, the ‘anticipation function’8 of IIAs reflects the way in which these acts provide provisions that can then be incorporated into EU primary law through subsequent treaty reforms.9 In particular, the EP has frequently used IIAs to introduce informal procedures that have subsequently influenced the evolution of EU primary law. This chapter aims to demonstrate this point.

européenne (Brussels, Bruylant, 2011); B Driessen, Interinstitutional Conventions in EU Law (London, Cameron May, 2008); F von Alemann, Die Handlungsform der Interinstitutionellen Vereinbarung, Eine Untersuchung des Interorganverhältnisses der europäischen Verfassung (Berlin, Springer, 2006); R Godet, Accords interinstitutionnels et équilibre institutionnel dans la Communauté européenne (Paris, Université Paris Panthéon-Sorbonne, 2001). 5 Godet (n 4) 213–31. 6 See, eg, FM Häge and M Kaeding, ‘Reconsidering the European Parliament’s Legislative Influence: Formal vs Informal Procedures’ (2007) 29(3) Journal of European Public Policy 341; J Stacey and B Rittberger, ‘Dynamics of Formal and Informal Institutional Change in the EU’ (2003) 10(6) Journal of European Public Policy 858. 7 See, eg, A Maurer, ‘Empowering the European Parliament in the EU’s Common Commercial Policy: Perspectives of the Next Framework Agreement’, paper presented at the ‘The European Parliament in External Trade and Investment Policy: Five Years after the Lisbon Treaty Conference (23 September 2014) 1–22; D Curtin, Executive Power of the European Union: Law, Practices, and the Living Constitution (Oxford, Oxford University Press, 2009) 233–37; A Maurer, D Kietz and C Völkel, ‘Interinstitutional Agreements in the CFSP: Parliamentarisation through the Backdoor’ (2005) 10 European Foreign Affairs Review 175; W Hummer, ‘Interinstitutionelle Vereinbarungen und institutionelles Gleichgewicht’ in W Hummer (ed), Paradigmenwechsel im Europarecht zur Jahrtausendwende (Vienna, Springer, 2004) 115; M Waelbroeck and D Waelbroeck, ‘Les déclarations communes en tant qu’instrument d’un accroissement des compétences du Parlement européen’ in JV Louis and D Waelbroeck (eds), Le Parlement européen dans l’évolution institutionnelle (Brussels, Editions de l’Université de Bruxelles, 1989) 79–86. 8 According to Gautron, IIAs have sometime fulfilled ‘une fonction d’anticipation du droit originaire’ (JC Gautron, ‘Les accords interinstitutionnels dans l’ordre juridique communautaire’ in P Avril and M Verpeaux (eds), Les règles et principes non écrits en droit public (Paris, Université de Paris 2, 2000) 203). 9 Concerning the ability of IIAs to provide a basis for future treaty reforms, see D Kietz and A Maurer, ‘The European Parliament and Treaty Change: Predefining Reforms through Interinstitutional Agreements’ in D Kietz and P Slominski, A Maurer and S Puntscher Riekmann (eds), Interinstitutionelle Vereinbarungen in der Europäischen Union (Baden-Baden, Nomos, 2010) 157–98; Maurer, Kietz and Völkel (n 7) 175–95. On this topic, see also the research carried out by Farrell and Héritier, which shows that informal, internal or inter-institutional procedures developed by institutions explain certain developments in EU primary law: H Farrell and A Héritier, ‘Introduction: Contested Competences in the European Union’ (2007) 30(2) West European Politics 227; H Farrell and A Héritier, ‘Codecision and Institutional Change’ (2007) 30(2) West European Politics 285; H Farrell and A Héritier, ‘Conclusion: Evaluating the Forces of Interstitial Institutional Change’ (2007) 30(2) West European Politics 405.

The Anticipation Function of Interinstitutional Agreements  37 In practice, the Council, the EP and the Commission have mainly used IIAs in the scope of decision-making processes.10 It is therefore interesting to study the influence of the provision of the IIAs in the evolution of the EU primary law related to a selected number of procedures provided for in the Treaties. In this regard, this chapter focuses on analysing the influence of IIAs within the framework of the procedure for concluding international agreements, the appointment procedure of the Commission and its President, and the legislative process. These three decision-making processes are of interest because many IIAs have been concluded within their framework. Given these assumptions, this chapter begins by setting out the main elements relating to the use of IIAs and the mechanisms that allow them to influence the evolution of the EU primary law. It then focuses precisely on analysing anticipation function of IIAs within the framework of the concluding international agreements procedure, the appointment procedure of the Commission and its President, and the ordinary legislative procedure. Likewise, it aims to identify which modifications have been provided on these procedures by the IIAs and how this mechanism recalibrated the executive–legislative relations by strengthening the position of the EP.

II. The IIAs in the EU Institutional System As stated above, IIAs are bilateral or trilateral agreements concluded by European institutions that allow them to improve their cooperation. Considering their central position in this chapter, the main aspects relating to the use of IIAs should be briefly introduced, namely their legal basis, their binding nature, their function in the EU institutional system and the limits on their implementation. IIAs have been used since the very foundation of the European Community and their use has subsequently intensified throughout the European integration process.11 Since IIAs stem from inter-institutional practice, their use was originally developed outside the Treaties. However, the Lisbon Treaty introduced Article 295 of the Treaty on the Functioning of the European Union (TFEU) as the legal basis allowing the EP, the Council and the Commission to ‘conclude interinstitutional agreements’. Based on the case law of the European Court of Justice,12 the principle of sincere cooperation (Article 13(2) of the Treaty on European Union (TEU)) could also be considered as a legal basis for the conclusion of IIAs.13 According to Article 295 TFEU, IIAs ‘may be of binding nature’.14 Hence, IIAs based on Article 295 TFEU may be given a legally binding character for their signatory institutions.15 This confirms the case law of the European Court of Justice, which stated, as early as 1996 that these agreements could be legally binding for their signatory institutions.16 However,

10 W Hummer, ‘From “Institutional Agreements” to “Interinstitutional Agencies/Offices”?’ (2007) 13 European Law Journal 74. 11 ibid 72. 12 Case C-204/86 Greece v Council [1988] ECLI:EU:C:1988:450. 13 Blumann (n 4) 7; Tournepiche (n 4) 327–52; Waelbroeck and Waelbroeck (n 7) 79. 14 Article 295 TFEU. 15 See, eg, Blumann (n 4) 27–36. 16 Case C-25/94 Commission v Council [1996] ECLI:EU:C:1996:114.

38  Marco Urban given the text of Article 295 TFEU, it should be added that these agreements may also not be of a binding nature. According to the case law of the Court, the legally binding nature of an IIA must be analysed on a case-by-case basis and must be based on the institutions’ intention to be bound, which is reflected in the terms used in the IIA.17 Based on Article 295 TFEU, IIAs must allow the three main European institutions to ‘make arrangements for their cooperation’. In line with this broad statement, institutions have used these agreements to improve their cooperation in different areas of EU law.18 However, as mentioned previously, institutions have most frequently made use of these agreements within the scope of decision-making processes. Although not all of the procedures set out by the Treaties have been affected yet, only a few of them currently avoid the phenomenon of IIAs. This point seems to have been taken into consideration by the authors of the Lisbon Treaty, which placed Article 295 TFEU in the TFEU’s section named ‘Procedures for the Adoption of Acts and Other Provisions’.19 The increasing use of IIAs within the framework of decision-making processes illustrates the willingness of the three main institutions – the Council, the Commission and the EP – to improve their cooperation to better fulfil their objectives. This cooperation can be considered as necessary regarding the EU institutional structure, which spreads powers between these three institutions which are independent of each other. Therefore, some authors regard the inter-institutional cooperation as a necessary element of the functioning of the EU institutional system.20 IIAs constitute the legal tool allowing institutions to realise this need for collaboration.21 In particular, the use of IIAs was also made necessary because of the lack of clear and precise rules in the EU primary law governing the cooperation between institutions.22 According to Monar, one of the main characteristics of the EU institutional system is that ‘the bonds and links which normally surround and regulate the two political branches of a constitutional system, i.e. the legislative and the executive, are largely non-existent in the Community’.23 Based on Article 295 TFEU, the EP, the Council and the Commission must use IIAs ‘in compliance with the Treaties’. This statement refers mainly to Article 13 (2) TEU, which obliges each institution to ‘act within the limits of the powers conferred on it in the

17 ibid; Case C-58/94 The Netherlands v Council [1996] ECLI:EU:C:1996:171. 18 For a review of EU law fields concerned by IIAs, see Hummer (n 10) 74; Blumann (n 4) 8–24; Godet (n 4) 231–368. According to Driessen, ‘it is no exaggeration to say that interinstitutional convention covers the full length and width of the areas in which the European Union is active’ (Driessen (n 4) 36). 19 B de Witte, ‘Legal Instruments and Law-Making’ in S Griller and J Ziller (eds), The Lisbon Treaty-EU Constitutionalism without a Constitutional Treaty? (Vienna, Springer, 2008) 102. 20 See, eg, S Roland, Le triangle décisionnel communautaire à l’aune de la théorie de la séparation des pouvoirs (Brussels, Bruylant, 2008) 229–97. 21 According to Monar, ‘it may be argued that [IIAs] are necessary instruments of the institutions in order to ensure smooth end efficient cooperation in the implementation of certain Treaty provisions’ (J Monar, ‘Interinstitutional Agreements: The Phenomenon and its New Dynamics after Maastricht’ (1994) 31 CMLR 700). 22 F Snyder, ‘Interinstitutional Agreements: Forms and Constitutional Limitations’ in G Winter (ed), Sources and Categories of European Union Law (Baden-Baden, Nomos, 1996) 461. According to Bieber: ‘The incomplete nature of the regulatory system is palpable, it is sometimes described as skeletal. This applies as much to the powers of the individual institutions as to the inter-institutional relations and relations with the member States’ (R Bieber, ‘The Settlement of Institutional Conflicts on the Basis of Article 4 of the EEC Treaty’ (1984) 21 CMLR 507). 23 Monar (n 21) 694.

The Anticipation Function of Interinstitutional Agreements  39 Treaties, and in conformity with the procedures, conditions and objectives set out in them’. This provision reflects the principle of institutional balance, which constitutes the main condition applied to the implementation of IIAs.24 Therefore, IIAs cannot modify the letter and content of the Treaties.25 However, IIAs frequently introduce provisions that complement EU primary law and, consequently, may alter the institutional balance as set out by the Treaties.26 This observation is particularly evident when analysing the anticipation function of these agreements.

III. The Anticipation Function of IIAs The anticipation function of IIAs reflects the way in which these acts provide provisions that can then be incorporated into EU primary law through subsequent treaty reforms. This mechanism is part of an approach generally described as ‘institutionalist’ or ‘functionalist’, which considers that institutions have a consequent influence on the evolution of EU primary law.27 This is generally opposed to the ‘intergovernmental approach’, according to which developments in EU primary law are mainly decided between Member States, without the European institutions having a significant influence.28 The amendments of EU primary law are formally adopted according to the revision ­procedure set out by the Treaties and decided by the Member States during Intergovernmental Conferences (IGCs).29 Among the parameters that tend to influence the content of these amendments, some authors consider that developments in EU law that have occurred since the last treaty reform have a significant importance.30 These developments are made by

24 According to the European Court of Justice, art 13(2) TEU ‘reflects the principle of institutional balance, characteristic of the institutional structure of the European Union’ (Case C-425/13 Commission v Council [2015] ECLI:EU:C:2015:483, para 69). Regarding the principle of institutional balance, see P Craig, ‘Institutions, Power, and Institutional Balance in the Evolution of EU Law’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, Oxford University Press, 2011) 41–84; K Lenaerts and A Verhoeven, ‘Institutional Balance as a Guarantee for Democracy in EU Governance’ in C Joerges and R Dehousse (eds), Good Governance in Europe’s Integrated Market (Oxford, Oxford University Press, 2002) 35–88; S Prechal, ‘Institutional Balance: A Fragile Principle with Uncertain Contents’ in N M Blokker and T Heukels (eds), The European Union after Amsterdam: A Legal Analysis (The Hague, Kluwer Law International, 1998) 273–94; J-P Jacqué, ‘The Principle of Institutional Balance’ (2004) 41 CMLR 383. 25 Snyder (n 22) 464; Monar (n 21) 700; Driessen (n 4) 267. 26 Blumann (n 4) 32; Tournepiche (n 4) 480–82. 27 Concerning the ‘institutionalist’ or ‘functionalist’ approach, sometimes also called the structural, neo-institutional or supranational approach, see, eg, S Hix and B Høyland, The Political System of the European Union, 3rd edn (New York, Palgrave Macmillan, 2011) 16–19; J Stacey, Integrating Europe: Informal Politics and Institutional Change (Oxford, Oxford University Press, 2010) 32–61. 28 Concerning the intergovernmental approach, see, eg, A Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (New York, Cornell University Press, 1998); G Tsebelis and G Geoffrey, ‘The Institutional Foundations of Intergovernmentalism and Supranationalism in the European Union’ (2001) 55 International Organization 357. 29 Article 48 TEU. 30 T Christiansen and KE Jorgensen, ‘The Amsterdam Process: A Structurationist Perspective on EU Treaty Reform’ (1999) European Integration Online Papers 1; T Christiansen, G Falkner and KE Jorgensen, ‘Theorizing EU Treaty Reform: Beyond Diplomacy and Bargaining’ (2002) 9(1) Journal of European Public Policy 12; Stacey and Rittberger (n 6) 858–83.

40  Marco Urban formal or informal, unilateral or multilateral acts adopted by institutions,31 as well as the case law of the European Court of Justice.32 Therefore, part of EU primary law adopted by treaty reforms is commonly inspired by rules that are already in force.33 Based on these assumptions, IIAs may, to some extent, influence decisions made during IGCs.34 Some amendments to the EU primary law can be prepared at an earlier stage through IIAs. According to Kietz and Maurer: ‘IIAs can be seen as rules or procedures that, once introduced, shape the realm for further developments by narrowing the scope for possible change and by indirectly obliging Member States to think only of the incremental revision of existing arrangements.’35 Nevertheless, the incorporation of a provision of an IIA into the Treaties depends on various factors, mainly the capacity of institutions to defend their wishes, the opportunities involved in such a move and the will of the Member States.36 Besides the decision-making processes that are further examined in the chapter, scholars have demonstrated the IIAs’ anticipation function in the budgetary procedure37 and within the framework of the Common Foreign and Security Policy.38 The way in which the EP used IIAs to influence the development of EU primary law constitutes a strategy which compensates for the weakness of its powers within the revision procedure set out by the Treaties. Already in a 1998 parliamentary report made by the Committee on Institutional Affairs, the rapporteur made the following statement: ‘Experience has shown that, for the most part, institutional improvements yielded by successive amendments to the Treaties have not so much been the result of negotiations at the interinstitutional conference as represented the sanctioning of established practices, either by means of interinstitutional agreements or following Court of Justice decisions, or by more extensive use of existing procedures so as to widen existing breaches.’39 From the MEPs’ point of view, IIAs seem to constitute instruments of transition allowing them to obtain new prerogatives, hoping that these will subsequently be formally incorporated into EU primary law. According to some scholars, it seems that even when it was decided not to transpose the content of an IIA into the EU primary law, these acts could have had a decisive influence on the conduct of the negotiations taking place during IGCs.40 The strategy of the EP could also be examined in a more global way that includes the use of its Rules of Procedure (RoP). On this point, according to Magnette, most elements of

31 Maurer, Kietz and Völkel (n 7) 181–84; Stacey and Rittberger (n 6) 860–64. 32 A Iliopoulou-Penot, ‘Réflexions sur la codification de la Jurisprudence par le législateur européen’ in B Brunessen, F Picod and S Roland (eds), L’identité du droit de l’Union européenne (Brussels, Bruylant, 2015) 187–201. 33 According to Stacey, between a sixth and a fifth of the formal provisions of the treaty are based on rules first created in the informal sphere of the EU, all either verbatim or with slightly altered wording but no discernible alteration of the substance (Stacey (n 27) 237). 34 Maurer, Kietz and Völkel (n 7) 182–84; Kietz and Maurer (n 9) 161–62. 35 Kietz and Maurer (n 9) 161. 36 A Rasmussen, ‘Challenging the Commission’s Right of Initiative? Conditions for Institutional Change and Stability’ (2007) 30(2) West European Politics 244. 37 J Lindner, ‘Institutional Stability and Change: Two Sides of the Same Coin’ (2003) 10(6) Journal of European Public Policy 912. 38 Maurer, Kietz and Völkel (n 7) 184–95. 39 ‘Report on improvements in the functioning of the Institutions without modification of the Treaties – making EU policies more open and democratic from the Committee on Institutional Affairs’ (23 March 1998) Rapporteur: F Herman, A4-0117/98, 8. 40 Maurer, Kietz and Völkel (n 7) 192–94.

The Anticipation Function of Interinstitutional Agreements  41 the parliamentary model have followed the same dynamic pattern: ‘first invented by MEPs inspired by national traditions, they were formalised in the EP’s Rules of Procedure and recognised by the other institutions in inter-institutional agreements, before being formally included in the treaty during intergovernmental conferences’.41 Given these assumptions, the anticipation function of IIAs appears to be a mechanism enabling the EP to influence, to a certain extent, the evolution of EU primary law decided by the Member States during IGCs. Therefore, it can be assumed that the anticipation function of IIAs is a mechanism which participates in the recalibration of the executive–legislative relationship to the benefit of the EP. In practice, this point has been observed within the framework of the procedure for concluding international agreements, the appointment procedure of the Commission and its President, and the legislative process.

IV. The Anticipation Function of IIAs in Decision-Making Processes A. The IIAs Related to the Procedure for Concluding International Agreements The procedure for the EU’s negotiation, conclusion and termination of an international agreement, currently provided for in Article 218 TFEU, allows the EU to conclude international agreements with third countries or international organisations.42 Notoriously weak at the time of the founding of the EU, the EP’s powers in this procedure have expanded relatively slowly following the treaty reforms. This can be explained by the historically intergovernmental nature of this procedure. The task of conducting external relations has long been perceived as a duty reserved for the executive power to the detriment of the legislative power.43 Since the entry into force of the Lisbon Treaty, the EP’s approval is now required for most international agreements planned by the EU.44 However, this decision-making process still allows for a stronger role in favour of executive powers, namely the Council and the Commission, as opposed to the legislative power, namely the EP. This point is clearly demonstrated in other chapters in this volume.45 The procedure for concluding international agreements has been the subject of many IIAs since the founding of the EU. These agreements have mainly enabled the institutions to

41 P Magnette, ‘Appointing and Censuring the European Commission: The Adaptation of Parliamentary Institutions to the Community Context’ (2001) 7 European Law Journal 295. 42 On the procedure for the EU’s negotiation, conclusion and termination of an international agreement see, eg, P Eeckhout, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011) 193–211; P Koutrakos, EU International Relations Law, 2nd edn (Oxford, Hart Publishing, 2015) 133–60. 43 On this point, see the opinion of the General Court of the EU: ‘initiating and conducting negotiations in order to conclude an international agreement fall, in principle, within the domain of the executive’ (Case T-529/09 In’t Veld v Council [2012] ECLI:EU:T:2012:215, para 88). 44 Article 218(6)(a) TFEU. 45 See Cristina Fasone and Maria Romaniello, Katharina Meissner and Guri Rosén, and Wolfgang Weiß, chs 10, 11 and 12 in this volume respectively.

42  Marco Urban clarify the implementation of certain procedural steps. However, this category of IIAs has not really been in the spotlight of academic literature.46 The first two IIAs were concluded between the EP and the Council. These are the 1964 Luns Agreement47 and the 1973 Westerterp Agreement.48 These informal procedures that are provided by these agreements were further referred to as the Luns-Westerterp procedure. The Commission and the EP subsequently concluded five IIAs related to this decision-making process, the Codes of conduct concluded in 199049 and 1995,50 and the Framework Agreements concluded in 2000,51 200552 and 2010.53 The EP and the Commission entered into these IIAs in order to improve their relations in different fields of EU law, namely the procedure for concluding international agreements. The EP and the Council concluded another IIA specifically concerning the conduct of the external relations in 2014.54 Based on Article 40 of the IIA on better law-making,55 negotiations should be currently under way between the Council, the EP and the Commission on a new IIA related to the procedure for concluding international agreements. All the IIAs mentioned above have been concluded with the primary purpose of strengthening the EP’s influence at different stages of the procedure for concluding international agreements. On this point, scholars have shown that the 2010 Framework Agreement, currently in force, tends to improve the influence of the EP at different stages of this procedure.56 More precisely, the content of these IIAs is mainly aimed to give the EP access to information and to reinforce its involvement preceding its formal intervention at the end of the negotiations. All the IIAs mentioned above have provisions allowing the EP to be kept well informed at different stages of the procedure for concluding international agreements.57 These provisions have generally been detailed, and their scope expanded, with each reformed act. The 2010 Framework Agreement, currently in force, sets out in detail the information that must be forwarded to the EP by the Commission, as well as the procedural modalities organising 46 See Driessen (n 4) 245–63; Maurer (n 7) 3–14. 47 Annex to Council Doc S/861/63 of 24 and 25 February 1964 (not published in the OJ). 48 Annex to Council Doc R/2641/73 of 15 October 1973 (not published in the OJ). 49 Code of Conduct on improving interinstitutional relations [1991] OJ C280/165. 50 Code of Conduct, Annex of the EP Resolution on the Commission’s annual Programme of work [1995] OJ C89/68. 51 Framework Agreement on relations between the EP and the Commission [2001] OJ C121/35. 52 Framework Agreement on relations between the EP and the Commission [2006] OJ C117E/125. 53 Framework Agreement on relations between the EP and the Commission [2010] OJ L304/47. 54 Interinstitutional Agreement between the EP and the Council concerning the forwarding to and handling by the EP of classified information held by the Council on matters other than those in the area of the Common Foreign and Security Policy [2014] OJ C95/1. 55 Article 40 of the 2016 IIA on better law-making ([2016] OJ L123/1) calls on the three institutions to ‘negotiate improved practical arrangements for cooperation and information-sharing’ in the field of the procedure for concluding international agreements. 56 On the implementation of the 2010 Framework Agreement (n 53), see M Urban, ‘Les compétences du Parlement européen au sein de la procédure de conclusion des accords internationaux – Quel rôle pour le Parlement européen dans les relations Suisse-UE depuis la réforme de Lisbonne ?’ (2016) 26 Swiss Review of International and European Law 605, 616–17; Maurer (n 7) 12–14; R Passos, ‘The European Union’s External Relations a Year after Lisbon: A First Evaluation from the European Parliament’ in P Koutrakos (ed), The European Union’s External Relations a Year after Lisbon, CLEER Working Papers 2011/3, 54. 57 According to Curtin, the EP has usually gained access to classified information in decision-making processes through IIAs (D Curtin, ‘Overseeing Secrets in the EU: A Democratic Perspective’ (2014) 52 Journal of Common Market Studies 692).

The Anticipation Function of Interinstitutional Agreements  43 such a transfer.58 This agreement also gives the MEPs the possibility to be included in European delegations in the event of international negotiations.59 The 2014 IIA between the Council and the EP aims to better organise the transfer of information to the EP, although without specifying the type of information that should be transmitted.60 In parallel to IIAs, subsequent treaty reforms have progressively allocated to the EP a right to be informed in the procedure for concluding international agreements. The Treaty of Amsterdam was the first reform that introduced a duty to inform the EP at different stages of the procedure.61 The Lisbon Treaty has significantly strengthened this access to information by requiring the EP to be held ‘immediately and fully informed at all stages of the procedure’.62 The scope of this right to be informed was broadly interpreted by the European Court of Justice.63 The Lisbon Treaty has also introduced a duty to inform the EP in the field of the Common Commercial Policy.64 Besides the provision related to the access to information, some IIAs mentioned above have also introduced provisions which reinforce the involvement of the EP preceding its formal intervention at the end of the negotiations. The 2000 Framework Agreement,65 the 2005 Framework Agreement66 and the 2010 Framework Agreement67 included provisions inviting the Commission to take into account the EP’s opinion prior to its formal intervention. Even if IIAs do not specify how the Commission should fulfil its commitments, it seems to do so by considering the EP Resolutions and the opinions expressed by MEPs at formal or informal inter-institutional meetings.68 Although the institutional practice since the Lisbon Treaty indicates an increasing involvement of the EP at procedural stages preceding its formal intervention,69 EU primary law has never formally given the EP such prerogatives prior to its intervention at the end of the negotiations. 58 In the 2010 Framework Agreement (n 53), provisions relating to the access to information are divided between its central body (arts 23–29) and Annexes II and III. 59 ibid arts 25–27. However, ‘Members of the European Parliament may not participate directly in these negotiations’ (art 25). 60 For instance, some of the informal procedures provided for in the 2014 IIA (n 54) concern the ‘negotiating directives for international agreements’ (art 1), although without specifying in which circumstances the Council must transmit these documents to the EP. 61 According to art 300 (2) of the Treaty establishing the European Community: ‘The European Parliament shall be immediately and fully informed on any decision … concerning the provisional application or the suspension of agreements, or the establishment of the Community position in a body set up by an agreement based on Art 310.’ 62 Article 218(10) TFEU. 63 Case C-658/11 Parliament v Council [2014] ECLI:EU:C:2014:2025; Case C-263/14 Parliament v Council [2016] ECLI:EU:C:2016:435. Concerning these two sentences, see, eg, P van Elsuwege, ‘Securing the Institutional Balance in the Procedure for Concluding International Agreements: European Parliament v. Council (Pirate Transfer Agreement with Mauritius)’ (2015) 52 CMLR 1379; A Pieter van der Mei, ‘Case Note; EU External Relations and Internal Inter-institutional Conflicts, the Battlefield of Article 218 TFEU’ (2016) 23 Maastricht Journal of European and Comparative Law 1051. 64 Article 207(3) TFEU. 65 2000 Framework Agreement (n 51) art 15. 66 2005 Framework Agreement (n 52) art 19. 67 2010 Framework Agreement (n 53) art 24, and arts 4–5 of Annex III. 68 According to Kleimann, the EP ‘has various means to voice its political preferences and flag red lines and preconditions for its final consent early on, including the use of non-binding parliamentary resolutions, hearings, opinions, Commission reports on progress in negotiations and questions to the Commission’ (D Kleimann, ‘Taking Stock: EU Common Commercial Policy in the Lisbon Era’ (April 2011) 345 CEPS Working Document, 7). 69 See K Meissner, ‘Democratizing EU External Relations: The European Parliament’s Informal Role in the SWIFT, ACTA, and TTIP Negotiations’ (2016) 21 European Foreign Affairs Review 269; H Flavier, ‘Parlement européen et relations extérieures: une révolution démocratique en marche’ (2016) 52 Revue trimestrielle de droit

44  Marco Urban Even if so far, the provisions of the IIAs relating to the EP’s involvement have not inspired an amendment in EU primary law, it cannot be excluded that this might be the case in a future treaty reform. Based on the content of the IIAs mentioned above, the institutional practice and the EP’s RoP,70 this could be realised by the allocation to the EP of a right to be consulted on the draft negotiating directives prior to their adoption by the Council in the case of an international agreement requiring the EP’s consent. Such a reform, the relevance of which may of course be discussed, would strengthen the EP’s position to the detriment of the Council and the Commission. In conclusion, the IIAs related to the procedure for concluding international agreements had an influence on the allocation of a duty to inform the EP in EU primary law. The EP first benefited from access to information through the implementation of informal procedures provided for by IIAs. Thereafter, these informal procedures were progressively incorporated into EU primary law. In this respect, it seems that the IIAs’ provisions related to the access to information have fulfilled an anticipation function. Given these observations, it can be assumed that these agreements have participated in compensating for the imbalance in favour of the executive that has characterised EU primary law in relation to this decision-making process.

B. The Appointment Procedure of the Commission and its President A further interesting example on the anticipation function of the IIAs is the appointment procedure of the Commission and its President. This decision-making, currently provided for in Article 17(7) TEU, allows the European Council, the Council of the European Union and the EP to determinate the composition of the Commission.71 The development of the EP’s powers in the appointment procedure of the Commission and its President went ‘from no say at all to a definitive say’.72 Indeed, although the Treaty of Rome directly provided the EP with the power to dismiss the Commission, it prescribed no role for the EP in the appointment of the Commission. Thereafter, every treaty reform has improved the prerogatives of the EP in this decision-making process. Under the Lisbon Treaty, the European Council, acting by a qualified majority, shall propose to the EP a candidate for President of the Commission. This candidate shall then be elected by the EP by a majority of its component members. The Council, by common accord with the President-elect, shall adopt the list of persons whom it proposes for appointment as members of the Commission. Finally, the President of the Commission and the other members of the Commission shall be subject as a body to a vote of consent by the EP.

européen 293; A Ripoll Servent, ‘The Role of the European Parliament in International Negotiations after Lisbon’ (2014) 21(14) Journal of European Public Policy 568. 70 Article 108(3) EP RoP (July 2018). The EP referred to this provision in its Resolution on trade negotiations between the EU and Japan (EP Resolution of 13 June 2012 on EU trade negotiations with Japan [2013] OJ C332E/44). 71 On the appointment procedure of the Commission and its President, see, eg, R Corbett, F Jacobs and D Neville, The European Parliament, 9th edn (London, Harper, 2016) 341–48. 72 M Westlake, ‘The European Commission and the European Parliament’ in D Spence and G Edwards (eds), The European Commission, 3rd edn (London, Harper, 2006) 266.

The Anticipation Function of Interinstitutional Agreements  45 Therefore, even if the executive power, namely the Council and the Commission President-elect, still has the competence to nominate the persons who will make up the Commission, the legislative power has the final word. This ‘success story’73 is partially due to the way in which the EP introduced informal procedures within the framework of its relations with the Commission and the Council that were progressively incorporated into EU primary law.74 These informal procedures can be considered as IIAs in the sense that they result from the EP’s acts or requests that have been accepted, tacitly or explicitly, by its institutional partners. After the EP became directly elected in 1979, it organised a plenary session debate and a vote of confidence on every incoming Commission.75 The EP first applied this procedure to the Gaston Thorn Commission in 1981.76 The Council decided to acknowledge this informal procedure in the Stuttgart Solemn Declaration of 19 June 1983.77 This informal procedure became a routine and the Commission as a whole usually awaited the EP’s vote of confidence before taking office.78 More precisely, when the EP applied this procedure to the Jacques Delors Commissions of 1985 and 1989, the Commission demonstrated its acceptance of the aforementioned procedure by waiting for the EP’s approval before being administered the oath of office by the European Court of Justice.79 Finally, this informal procedure was formally incorporated into EU primary law by the Maastricht Treaty.80 Besides the procedure regarding the appointment of the Commission, the EP provided in its RoP rules which called for the Commission’s presidential nominee to present a statement in its plenary session, to be followed by a plenary debate and a vote on the nominee’s fitness for the Commission.81 Before the contentious vote on appointing Jacques Santer as President of the Commission in 1994, the EP threatened not to invest the Commission if its negative vote regarding the President of the Commission was not taken into account.82 This warning was taken seriously by the Commission and the Council.83 Therefore, the EP used its new prerogatives regarding the approval of the Commission given by the Maastricht Treaty to pressure the Commission and the Council to respect additional rules provided unilaterally. The Amsterdam Treaty incorporated this informal procedure into EU primary law by giving the EP an approval vote on the President of the Commission.84 Since the Lisbon reform, the President of the Commission is elected by the EP. The EP’s RoP still calls for the Commission’s presidential nominee to present a statement in its plenary session which must be followed by a plenary debate before the election vote.85 73 C Moury, ‘Explaining the European Parliament’s Right to Appoint and Invest the Commission’ (2007) 30(2) West European Politics 367, 388. 74 On this topic, see Driessen (n 4) 51–59; Moury (n 73); Kietz and Maurer (n 9) 164–66; J Stacey, ‘Displacement of the Council via Informal Dynamics? Comparing the Commission and Parliament’ (2003) 10(6) Journal of European Public Policy 936, 943–46. 75 Kietz and Maurer (n 9) 164; Driessen (n 4) 55. 76 Stacey (n 74) 944. 77 Stuttgart Solemn Declaration of 19 June 1983, Bull EC, June 1983, 26–31. 78 Moury (n 73) 376; Kietz and Maurer (n 9) 164. 79 Stacey (n 74) 944. 80 Article 158(2) of the Treaty establishing the European Community. 81 Article 32 EP RoP (December 1995) [1995] OJ L293/1. 82 EP Resolution on the investiture of the Commission [1994] OJ C128/358, para 13. 83 Moury (n 73) 376. 84 Article 214 of the Treaty establishing the European Community. 85 Article 117 EP RoP (July 2018).

46  Marco Urban In addition to the procedures regarding the appointment of the Commission and its President, the EP introduced informal rules requiring every individual Commissioner-designate to attend hearings before the parliamentary committees corresponding to their Commission portfolios.86 The EP first applied this informal procedure to the Jacques Santer Commission in 1995.87 Fearing that the Commission’s investiture vote would not be obtained at the end of the procedure, every individual Commissioner-designate accepted to comply with this informal procedure.88 By its own admission, but under the direct pressure of the investiture vote, the Commission became more accountable to the EP than it previously had been. This informal procedure became a routine and the Commissioners-designates always meet parliamentary committees before the Commission investiture vote.89 The hearings procedure is ruled by EP’s RoP90 and is also mentioned in the 2010 Framework Agreement.91 Even if this hearings procedure has not yet inspired an amendment in EU primary law, it cannot be excluded that this might be the case in a future treaty reform. According to scholars, the EP’s influence on the appointment procedure of the Commission and its President is a parameter that has encouraged the conclusion of IIAs favourable to its position.92 For instance, the hearing procedure enables MEPs to communicate directly to the Commissioner-designates their wishes and obtain commitments from them.93 This is illustrated by the 2010 Framework Agreement, the negotiations of which were conducted during the same period when the second José Manuel Durão Barroso Commission was appointed. Following his investment on 16 September 2009, the President of the Commission agreed to negotiate a new IIA with the EP.94 During the hearings of the Commissioner-designates, MEPs did not hesitate to ask candidates for their opinion on the evolution of interinstitutional relations between the Commission and the EP.95 The first round of negotiations for the 2010 Framework Agreement ended with the adoption of an EP resolution on 9 February 2010 outlining the main points of the expected agreement.96 On the same day, the EP approved the investment of the second José Manuel Durão Barroso Commission.97 The preamble of the 2010 Framework Agreement, which was concluded on 20 October

86 Article 33 EP RoP (December 1995) [1995] OJ L293/1. 87 Stacey (n 74) 944. 88 ibid 946; Kietz and Maurer (n 9) 165; Moury (n 73) 379. 89 Corbett, Jacobs and Neville (n 71) 347. 90 Article 118 EP RoP (July 2018). 91 2010 Framework Agreement (n 53) art 3. 92 Kietz and Maurer (n 9) 193; Magnette (n 41) 306. 93 According to Magnette: ‘MEPs have often dedicated a large part of these hearings to institutional questions and have tried to obtain guarantees from the candidates that they would promote the Parliament, and that they would resign if a majority of the Parliament asked it’ (Magnette (n 41) 299). For an illustrative case study, see T Beukers, ‘The Barroso Drama, Enhancing Parliamentary Control over the European Commission and Member States’ (2006) 2 European Constitutional Law Review 21. 94 See José Manuel Durão Barroso, ‘Orientations politiques pour la prochaine Commission’, 3 September 2009. 95 During her hearings, Mrs Catherine Ashton was asked for her opinion on the conclusion of an IIA which would extend the EP’s powers beyond what is provided for in the Treaties (Replies to the questionnaire sent to Mrs Catherine Ashton, Member of the Commission, Section B – Specific questions, Doc EP, 18 December 2009). 96 EP resolution of 9 February 2010 on a revised Framework Agreement between the EP and the Commission for the next legislative term [2010] OJ C341E/1. 97 EP decision of 9 February 2010 giving consent to the appointment of the Commission [2010] OJ C341E/79.

The Anticipation Function of Interinstitutional Agreements  47 2010, refers directly ‘to the political guidelines issued, and the relevant statements made, by the President-elect of the Commission on 15 September 2009 and 9 February 2010 and the statements made by each of the candidate Members of the Commission in the course of their hearings by parliamentary committees’.98 Considering all the above, it can be stated that IIAs relating to the appointment procedure of the Commission and its President had an influence on the evolution of the EP’s formal powers regarding this procedure. Indeed, powers allowed to the EP by EU primary law have principally formalised existing practices primarily found in the EP’s RoP, which have been accepted by the Commission and the Council. In this respect, IIAs concluded within the scope of this procedure have fulfilled an anticipation function. Moreover, given our observations, it can be assumed that these agreements have participated in compensating for the imbalance in favour of the executive that has characterised EU primary law in relation to this decision-making process.

C. The Ordinary Legislative Procedure The anticipation function of the IIAs can also be illustrated by analysing the evolution of EU primary law relating to the ordinary legislative procedure, currently set out in Article 294 TFEU.99 Under the original Treaties, the EP was given the ‘smallest role’ in the legislative process.100 The EP only had the right to be consulted when this was provided by EU primary law. However, subsequent treaty amendments gradually increased its powers. The introduction of the co-decision procedure by the Maastricht Treaty, and its adjustment and enhancement by the Treaties of Amsterdam and Nice, made the EP the co-legislator alongside with the Council. Since the Lisbon reform, the renamed ordinary legislative procedure became the main legislative procedure. Under the Lisbon Treaty, the ordinary legislative procedure gives the same weight to the EP and the Council. The 2016 IIA on better law-making previously mentioned recalls ‘the equality of both co-legislators as enshrined in the Treaties’.101 The Commission has the formal right of legislative initiative.102 The legislative process has been the subject of many IIAs since the founding of the EU.103 Closely following the budgetary procedure, the legislative procedure is the decisionmaking procedure that has most often been the subject of such agreements.104 Scholars have already demonstrated that IIAs have introduced informal procedures which have

98 2010 Framework Agreement (n 53) Preamble. 99 On the ordinary legislative procedure, see, eg, P Craig and G de Búrca, EU Law: Text, Cases, and Materials, 6th edn (Oxford, Oxford University Press, 2015) 124–61; D Chalmers, G Davies and G Monti, European Union Law, 3rd edn (Cambridge, Cambridge University Press, 2014) 117–27. 100 Craig and de Búrca (n 99) 126. 101 2016 IIA on better law-making (n 55) Preamble. 102 Article 17(2) TEU. 103 On IIAs relating to the legislative process, see Driessen (n 4) 119–207; Godet (n 4) 233–56; J Rideau, ‘La coopération interinstitutionnelle dans les processus de décision de l’Union européenne’ in J Auvret-Finck (ed), L’Union européenne: carrefour de coopérations (Paris, LGDJ, 2002) 69–77. 104 Hummer (n 10) 74.

48  Marco Urban then been incorporated into EU primary law.105 The anticipation function of IIAs was also demonstrated in the context of the comitology procedure.106 Moreover, the use of IIAs within the framework of this procedure seems to have constituted an answer not only to the complexity of its implementation but also to the inter-institutional conflicts that have occurred during its conduct. On this point, many scholars have underlined that IIAs can constitute a useful tool to reduce inter-institutional conflicts within the framework of decision-making processes.107 The anticipation function of IIAs in the legislative process can be demonstrated by the evolution of EU primary law relating to the legislative initiative allowed to the EP.108 Under the Lisbon Treaty, the EP can request the Commission to submit any appropriate proposal on matters on which it considers that an act is required for implementing the Treaties.109 The 2016 IIA on better law-making,110 the 2010 Framework Agreement111 and the EP’s RoP112 specify the Commission’s obligations when the EP is using the legislative initiative. The EP’s right of initiative is also the result of the incorporation of existing practices provided by an IIA into EU primary law. In the founding of the EU, the EP was not allowed to submit proposals for legislative acts. In 1981, the EP proposed to its institutional partners an IIA which would provide it with a legislative initiative right.113 In response to the EP, the Commission undertook the obligation to consider the legislative proposals coming from the EP.114 Although the commitment was somewhat limited, the EP obtained from the Commission a right of initiative. This informal procedure was then incorporated into EU primary law by the Maastricht Treaty.115 In the 1995 Code of Conduct, which was concluded following the Maastricht reform, the Commission undertook the obligation to consider the legislative proposals made by the EP and to clearly justify its position regarding the EP’s demands.116

V. Conclusion This chapter has demonstrated that aspects of the EU primary law related to the procedure for concluding international agreements, the appointment procedure of the Commission

105 On the anticipation function of IIAs in the legislative procedure, see H Farrell and A Héritier, ‘Formal and Informal Institutions under Codecision: Continuous Constitution-Building in Europe’ (2003) 16 Governance 577; Farrell and Héritier, ‘Codecision and Institutional Change’ (n 9) 285–300. 106 Kietz and Maurer (n 9) 167–87. 107 See, eg, Stacey (n 27) 68–69; Monar (n 21) 695–96; R Mehdi, ‘Les crises institutionnelles’ in C Blumann and F Picod (eds), L’Union européenne et les crises (Brussels, Bruylant, 2010) 134–35; Rideau (n 103) 61. 108 Godet (n 4) 571. 109 Article 225 TFEU. 110 2016 IIA on better law-making (n 55) art 10. 111 2010 Framework Agreement (n 53) art 16. 112 Article 46 EP RoP (July 2018). 113 Rapport sur le droit d’initiative et le rôle du Parlement européen dans le processus législatif de la Communauté (27 May 1981) Rapporteur: K van Miert, 1-207/81-1981/1982, 14. 114 Le système institutionnel de la Communauté, Un équilibre à rétablir, Bull EC 3/82, October 1981. 115 Article 138B of the Treaty establishing the European Community. 116 1995 Code of Conduct (n 50) art 3.3.

The Anticipation Function of Interinstitutional Agreements  49 and its President, and the legislative process were first introduced within the framework of inter-institutional relations by way of IIAs. In particular, these agreements have provided informal procedures which were then incorporated into EU primary law through subsequent treaty reforms. In this regard, it can be assumed that the decision-making processes mentioned were concerned by the anticipation function of IIAs. More generally, this assumption supports the statement that IIAs can be considered an important feature of the evolving EU institutional system set up by the Treaties. Regarding the executive–legislative relationship, this chapter has sought to demonstrate that the EP has strategically used the anticipation function of IIAs in order to influence the evolution of EU primary law related to the decision-making processes in its favour. Considering our research, this strategy has allowed the EP to compensate for the imbalance in favour of the executive that has characterised EU primary law relating to these formal procedures. In sum, the EP used IIAs not only to allow the MEPs to introduce provisions that benefit their position in their inter-institutional relations, but also to influence the evolution of EU primary law. More concretely, these considerations suggest that when the EP manages to improve its position through the implementation of an IIA, there is a high likelihood that it will then support its incorporation into EU primary law on the occasion of a treaty reform. The executive power should always keep this observation in mind whenever it concludes an IIA.

50

3 Divided Accountability of the Council and the European Council The Challenge of Collective Parliamentary Oversight ELENA GRIGLIO

I.  Introduction: The Challenge of Accountability for the Council and the European Council The Council of the European Union (hereinafter ‘the Council’) and the European Council are hybrid institutions.1 On the one hand, they comprise representatives of Member States, on which they rely for appointment, definition of their mandate and dismissal of their components, therefore embodying the intergovernmental dimension of the EU constitutional structure.2 On the other hand, they act as supranational institutions endowed with collective prerogatives in the EU decision-making process.3 From a structural point of view, having regard to their composition, the two institutions share similar intergovernmental features.4 Moreover, they are both considered part of the fragmented EU executive.5 However, from a functional point of view, their role in the EU decision-making process is not fully comparable.

1 On the ‘Council’ as the ‘chameleon’ of EU institutions, see H Wallace, ‘The Council: An Institutional Chameleon?’ (2002) 15 Governance 325 ff; similarly, see J Lewis, ‘Informal Integration and the Supranational Construction of the Council’ (2003) 10 Journal of European Public Policy 996 ff. 2 M Laver and K Shepsle, Cabinet Ministers and Parliamentary Government (Cambridge, Cambridge University Press, 1994) 290; M Gallagher, M Laver and P Mair, Representative Government in Modern Europe, 5th edn (New York, McGraw-Hill, 2011) 52 f. 3 See F Hayes-Renshaw, ‘The European Council and the Council of Ministers’ in L Cram et al (eds), Developments in the European Union (London, Palgrave, 1998) 23 ff; F Hayes-Renshaw and H Wallace, The Council of Ministers, 2nd edn (Basingstoke, Palgrave Macmillan, 2006). 4 According to D Naurin, ‘Representation in the Councils of the EU’ in S Kroger (ed), Political Representation in the European Union: Democracy in a Time of Crisis (London, Routledge, 2014) 69: ‘The European Council is more clearly intergovernmental than the Council of Ministers.’ 5 D Curtin, ‘Challenging Executive Dominance in European Democracy’ (2014) 77 Modern Law Review 1 ff; D Curtin, Accumulated Executive Power in Europe: The ‘Most Dangerous’ Branch of Government in the European Union (Amsterdam, Knaw Press, 2009) 13.

52  Elena Griglio The Council is not only entitled with executive functions, but is also one of the law-making authorities of the EU. After the adoption of co-decision as the ordinary legislative procedure, following the Lisbon Treaty,6 the ‘nature’ of this institution has been intensively discussed. Some authors have assumed that the Council has become the upper chamber (representing the Member States) of a bicameral legislature also composed of the European Parliament (EP) as the lower chamber (representing the European electorate).7 Other authors have objected that the legislative capacity of the Council does not alter its original nature as a forum for intergovernmental negotiations among representatives of Member State executives.8 In fact, the latter thesis is borne out by solid arguments in the daily practice of the Council’s work. By contrast, the European Council was entitled under the Maastricht Treaty to provide the ‘necessary impetus’9 for further development of the EU and to draft the ‘general political guidelines’. In the following period, the European Council has further consolidated its strategic leadership and role in crisis management.10 The Lisbon Treaty has ratified the incremental institutionalisation11 of the European Council, confirming the role of ‘collective’ head of state12 and consolidating the power to set EU political directions and priorities.13 The 2008 economic crisis has definitively legitimated the European Council to adopt discretionary executive decisions.14 Since Lisbon, therefore, the European Council can no longer be seen as a body linked to the Council.15 The Council and the European Council are placed at the heart of the EU composite Constitution,16 participating in both the intergovernmental and the supranational logic of decision-making. Due to this hybrid position, some questions arise as to how the EU structure provides the accountability of the two institutions. If accountability is seen as ‘the condition of being liable to be required to give an account or explanation of actions and, where appropriate, to suffer the consequences’,17 it is necessary to clarify whether these 6 Article 289 TFEU. 7 J Lewis, ‘Is the Council Becoming an Upper House?’ in N Jabcko and C Parsons (eds), The State of the European Union. Vol 7. With US or against US? European Trends in American Perspective (Oxford, Oxford University Press, 2005) 141 ff; S Fabbrini, ‘Intergovernmentalism and its Limits: Assessing the European Union’s Answer to the Euro Crisis’ (2013) 46 Comparative Political Studies 1005 f. For a wider perspective, see P Norton, ‘How many Bicameral Legislature are There?’ (2004) 10 Journal of Legislative Studies 1 ff. 8 See Curtin, ‘Challenging Executive Dominance’ (n 5) 12; and Naurin (n 4) 69 ff. 9 Article D TEU, Maastricht, Item 1 – Document 1/3 [1992] OJ C191/01-1. See J Werts, The European Council (Amsterdam, Elsevier, 1992); P de Schoutheete and H Wallace, ‘The European Council’ (2002) 19 Notre Europe, https://institutdelors.eu/publications/le-conseil-europeen. 10 Naurin (n 4) 71 ff. 11 Curtin, Accumulated Executive Power (n 5); U Puetter, ‘Europe’s Deliberative Intergovernmentalism: The New Role of the Council and the European Council in EU Economic Governance’ (2012) 19 Journal of European Public Policy 161 ff; W Wessels, The European Council (London, Palgrave Macmillan, 2016) 187 ff. 12 Lewis (n 7) 146. 13 P Bocquillon and M Dobbels, ‘An Elephant on the 13th Floor of the Berlaymont? European Council and Commission Relations in Legislative Agenda Setting’ (2014) 21 Journal of European Public Policy 20 ff. 14 P de Schoutheete and S Micossi, ‘On Political Union in Europe: The Changing Landscape of Decision-Making and Political Accountability’ (2013) 4 CEPS Essay 6. 15 A Kreppel, ‘Looking “up”, “down” and “Sideways”: Understanding EU Institutions in Context’ (2011) 34 West European Politics 167 ff; F Eggermond, The Changing Role of the European Council in the Institutional Framework of the European Union (Cambridge, Intersentia, 2012). 16 L Besselink, A Composite European Constitution (Groningen, Europa Law Publishing, 2007). 17 O Dawn, ‘Executive Accountability: A Key Concept’ in L Verhey, P Kiiver and S Loeffen (eds), Political Accountability and European Integration (Groningen, Europa Law Publishing, 2009) 14.

Divided Accountability of the Council and the European Council  53 institutions enjoy collective accountability at a European level or, by contrast, whether their accountability results from the aggregation of each national representative’s individual accountability to its domestic institutions. The answer to these questions lies in the dual structure of parliamentary representation in the EU18 that is satisfied by the two channels set by Article 10 of the Treaty on European Union (TEU),19 one embodied by the EP and the other centred on national parliaments.20 These two channels are meant to satisfy the principle of accountability as a fundamental component of democratic government.21 In fact, some authors have been critical of the capacity of either channel to fulfil this requirement,22 assuming that large margins of unaccountability are reserved for the two executive organs. Such gaps are closely connected to the inability of the EU to develop a supranational mechanism of democratic ‘connection’ between citizens and institutions.23 These gaps have apparently widened after the entry into force of the Lisbon Treaty. The need to deal with a number of ‘crises’ affecting some pivotal aspects of EU integration (such as the economic and financial crisis, the migration crisis and Brexit) has led to a de facto recalibration of the executive–legislative relationship in favour of the intergovernmental dimension. The question addressed in this chapter is whether this imbalance has been adequately supported by the accountability arrangement or whether the recalibration has led to a greater deprivation of parliaments in terms of their capacity as democratic controllers. Whereas the literature has conducted the accountability analysis distinguishing the two channels of parliamentary representation – ie, the EP and national parliaments – it is the interaction of the two accountability circuits that this chapter addresses in order to assess their overall capacity to grant satisfactory standards of democratic scrutiny and oversight vis-a-vis the recalibration trends. The premise in section II is the renewed interest in the two aforementioned questions affecting the collective or aggregative nature of the accountability arrangement of the Council and the European Council. After having analysed the accountability circuits centred on the EP (section III.A) and on national parliaments (section III.B) respectively, in section IV the focus is on the overall structure of the chain of accountability and delegation supporting the two bodies. To fill in existing gaps in the chain of accountability, section V highlights the relevance of interparliamentary cooperation (IPC) and section VI draws some conclusions. 18 The alternative line to ensure accountability through the direct participation of citizens is outside the remit of this chapter. 19 S Micossi, ‘Democracy in the European Union’ (2008) 286 CEPS Working Document 7; P Lindseth, Power and Legitimacy: Reconciling Europe and the Nation-State (Oxford, Oxford University Press, 2010). 20 On the so-called ‘polycentric’ paradigm, see L Besselink, ‘National Parliaments in the EU’s Composite Constitution: A Plea for a Shift in Paradigm’ in P Kiiver (ed), National and Regional Parliaments in the European Constitutional Order (Groningen, Europa Law Publishing, 2006) 123 ff. 21 V Bogdanor, ‘Legitimacy, Accountability and Democracy in the European Union’ (2007) A Federal Trust Report 1 ff. 22 S Hennette, T Piketty, G Sacriste and A Vauchez, Pour un traité de démocratisation de l’Europe (Paris, Editions du Seuil, 2017) 3 ff; C Lord, ‘How Can Parliaments Contribute to the Legitimacy of the European Semester?’ (2017) 70 Parliamentary Affairs 680; A Cygan, ‘Legal Implications of Economic Governance for National Parliaments’ (2017) 70 Parliamentary Affairs 714 ff. 23 On the accountability criteria derived from the three main normative perspectives of the intergovernmental, supranational and regulatory model adopted to explain EU integration, see B Crum and D Curtin, ‘The Challenge of Making European Union Executive Power Accountable’ in S Piattoni (ed), The European Union: Democratic Principles and Institutional Architectures in Times of Crisis (Oxford, Oxford University Press, 2015) 67 f.

54  Elena Griglio

II.  The Intergovernmental Accountability Challenge in Response to Current Trends of European Integration The concern over securing the accountability of the Council and the European Council has been a recurrent feature in the discourse on EU democratic governance.24 A recalibration of the accountability issue is fostered by the renewed concern for the overall democratic legitimacy of the EU structure brought about by the Lisbon Treaty and then boosted by the financial and economic crisis25 and by the increasing asymmetries in EU integration. First, with regard to the traditional oscillation between the supranational and intergovernmental logic of decision-making, the Lisbon Treaty formally entrenched a model of integration based on the intergovernmental regime, centred on the European Council and the Council.26 Then, within the framework of the EU economic governance, the European Council has emerged as an important centre of political gravity, while the Council has also been urged to adopt quick and often intrusive decisions. The crisis has more generally boosted ongoing tendencies of EU decision-making characterised by intergovernmentalism,27 has advocated further integration of national actors, rules, procedures and structures within the EU legal order,28 and has favoured the overriding prevalence of informal practices over official proceedings and competences.29 Increased socio-economic inequality fostered by the crisis has augmented the output legitimacy concern, thus leading to the need to seek reinforced input and throughput legitimacy standards.30 Moreover, EU integration is increasingly basing its governance structure on asymmetric solutions that tend to emphasise the intergovernmental dynamics within the Council and the European Council, challenging their functioning as supranational institutions.31 Since accountability represents ‘an element in the requirement of good governance’,32 the recalibration of the governance structure urges corresponding adaptations on the ground of accountability mechanisms. So far, there has not been any structural response to the recalibration challenge. Existing accountability mechanisms derived from

24 C Harlow, Accountability in the European Union (Oxford, Oxford University Press, 2002). 25 D Jançic (ed), National Parliaments after the Lisbon Treaty and the Euro Crisis: Resilience or Resignation? (Oxford, Oxford University Press, 2017); B Crum, ‘Parliamentary Accountability in Multilevel Governance: What Role for Parliaments in Post-crisis EU Economic Governance?’ (2018) 25 Journal of European Public Policy 268. 26 Fabbrini (n 7) 1008. 27 U Puetter, The European Council and the Council: New Intergovernmentalism and Institutional Change (Oxford, Oxford University Press, 2014); F Fabbrini, Economic Governance in Europe: Comparative Paradoxes and Constitutional Challenges (Oxford, Oxford University Press, 2016). 28 B Laffan, ‘European Union and Euro Zone: How to Coexist?’ in F Allen, E Carletti and S Simonelli (eds), Governance for the Eurozone: Integration or Disintegration (2012) 173, http://finance.wharton.upenn.edu/FIC/ FICPress/goveuro.pdf. 29 T Christiansen and C Neuhold, ‘Introduction’ in T Christiansen and C Neuhold (eds), International Handbook on Informal Governance (Cheltenham, Edward Elgar, 2012) 1 ff. 30 V Schmidt, ‘Dealing with Europe’s Other Deficit’ (2012) 19 Public Policy Research 108 ff; J Weiler, ‘Europe in Crisis: On “Political Messianism”, “Legitimacy” and the “Rule of Law”’ [2012] Singapore Journal of Legal Studies 248 ff; K Nïcolaidis, ‘European Democracy and its Crisis’ (2013) 51 Journal Common Market Studies 351 ff. 31 See I Pernice, ‘What Future(s) of Democratic Governance in Europe: Learning from the Crisis’ in I Pernice et al (eds), Challenges of Multi-tier Governance in the European Union (Brussels, European Parliament – Directorate General for Internal Policies, 2013) 9 f. 32 Dawn (n 17) 11.

Divided Accountability of the Council and the European Council  55 national democracies33 have increasingly proved unfit in terms of fulfilling the push towards legitimacy. In the first place, the hybrid nature of the Council and the European Council makes it uneasy to define at which level the accountability mechanisms should act. The general rule for multi-level governance is that ‘accountability should be ensured at that level where the respective executive decision is taken, whilst taking due account of the level where the decision has an impact’.34 This remark implies that national parliaments are not suited to grant direct accountability of decisions adopted by the Council and the European Council, since they instead act at the level where their decisions have an impact. Of course, there are exceptions relating to these policy areas that still fall under the competence and responsibility of Member States, as in the case of fiscal policies. Therefore, accountability mechanisms should be flexible in order to adapt to the effective degree of transfer of sovereignty from Member States to the EU, but similar devices are lacking at the moment.35 In the second place, if it is agreed that the effectiveness of the accountability regime can be assessed by its ‘ability to correct or improve executive action by (re-)aligning the actions of the executive actor with those of the forum and constituency it represents’,36 the conclusion has to be that neither channel of parliamentary representation is capable of fulfilling this expectation. No representative institution in the EU structure is endowed with the authority to adopt corrective actions or measures that aim to reverse actions of the Council and the European Council or to avoid them in the future. The capacity of national parliaments to adopt corrective measures is partial, as they are only able to bind their own national representative within the Council and the European Council. The EP itself has little corrective capacity, if the interaction with the Council in the legislative procedure is excluded, because it has no formal powers over the formation and dismissal of the two executive bodies. Moreover, the role of parliaments seems to decrease in areas of differentiated integration.37 The following sections will go more into detail regarding these assumptions.

III.  The Council and the European Council vis-a-vis the Two Channels of Parliamentary Representation A.  Supervision by the EP The relationship of the EP with the Council and the European Council is not comparable to the executive–legislative interaction featuring national parliamentary systems. This results

33 See section III.B below. 34 European Commission, ‘A blueprint for a deep and genuine economic and monetary union Launching a European Debate’ COM (2012) 777 final/2, 35. 35 See E Griglio and N Lupo, ‘Towards an Asymmetric European Union, without an Asymmetric European Parliament’ (2014) LUISS Guido Carli School of Government Working Paper. 36 Crum and Curtin (n 23) 71 f. 37 W Wessels, ‘National Parliaments and the EP in Multi-tier Governance: In Search for an Optimal Multi-level Parliamentary Architecture’ in Pernice et al (n 31) 108.

56  Elena Griglio from the atypical nature of the EU institutional architecture38 and from the lack of a formal arrangement enabling the EP to exercise authority over the two institutions.39 Even for the President of the European Council, there is no mechanism of political removal provided in the Treaties. Only the European Council, by a qualified majority, has the power to end the President’s term of office in the event of an impediment or serious misconduct.40 Moreover, as has been highlighted in section I, neither the Council nor the European Council is a fully fledged ‘executive’ body. It can therefore be asserted that the formal de jure accountability arrangement between the EP and the Council or the European Council is very limited.41 The tools available to the EP do not seem to satisfy the fundamental conditions of a comprehensive accountability arrangement. These provide that the controlled be obliged to explain and justify its conduct, that the controller can pass judgement and that the controlled may face consequences.42 Both the Council and the European Council have some informative duties in relation to the EP. For instance, pursuant to Article 4 TEU, the European Council has an obligation to inform the EP by submitting a report after each summit and an annual report on the progress achieved by the EU. To fulfil this obligation, the President of the European Council only needs to attend the EP plenary session (often the day after the Summit); no appearance before specialised parliamentary committees is required. Structuring a ‘dialogue’ at committee level would undoubtedly strengthen the accountability of European Council when highly technical issues are at stake, thus enabling the EP to participate in the setting of the EU strategic political directions proactively. Other prerogatives provided in the EP Rules of Procedure (RoP) aim at holding the Council accountable. Many of them affect the legislative procedure.43 However, standard oversight tools can also be used in the non-legislative field. The EP may specifically resort to the questioning procedures to get information or seek clarification from the Council, forcing the body to state its position on a certain decision or action.44 The Council, jointly with the Commission, is one of the main addressees of the different forms of questions and interpellations tabled in the EP. By contrast, only written questions can be addressed to the European Council.45 Moreover, a period of brief and concise questions lasting 30 minutes can be scheduled by the President of the EP when, pursuant to Rule 123, members of the Council and the European Council ask for permission to make a statement in the plenary. The demand can be raised at any time, but it is up to the President of the EP to decide when the statement may be made and whether it is to be followed by a full debate or by a round of questions. 38 V Schmidt, ‘Federalism and State Governance in the European Union and the United States: An Institutional Perspective’ in K Nicolaïdis and R Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (New York, Oxford University Press, 2001) 339. 39 M van de Steeg, ‘Public Accountability in the European Union: Is the European Parliament Able to Hold the European Council Accountable?’ (2009) 13 European Integration Online Papers 3. 40 Article 15(5) TEU. 41 Crum and Curtin (n 23) 78 ff; van de Steeg (n 39). 42 M Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (2007) 13 European Law Journal 447 ff. 43 See, eg, Rules 43 and 44 and the Rules under Title II – Chapter 3 of the EP Rules of Procedure (8th parliamentary term, January 2017). 44 See in particular Rules 128, 129, para 3, 130a and 130b. 45 Rule 130.

Divided Accountability of the Council and the European Council  57 Further informative prerogatives with respect to the Council and the European Council have been set for the EP in the realm of the economic governance. The so-called ‘Six Pack’ recognised that the EP ‘shall be duly involved in the European Semester in order to increase the transparency and ownership of, and the accountability for the decisions taken in particular by means of the economic dialogue’.46 The competent EP committee may therefore invite the President of the Council and, where appropriate, the President of the European Council to appear before the committee to discuss information on the broad guidelines of economic policy (Article 121(2) of the Treaty on the Functioning of the European Union (TFEU)) and any conclusions drawn by the European Council on orientations for economic policies in the context of the European Semester.47 However, attendance of these meetings is not mandatory but facilitative.48 With regard to these informative prerogatives, there are no binding judgments available to the EP. However, the EP can pass a form of ‘soft’ judgment by resorting to its standard scrutiny tools. For instance, according to Rule 123, following a request by members of the Council or the European Council, a statement with debate may be placed on its agenda; in these cases, the EP shall decide whether to wind up the debate with a resolution. Moreover, any MEP may table a motion for a resolution on a matter falling within the spheres of activity of the EU.49 However, no real negative consequences may be attached to this procedure. To conclude, no binding consequences can be derived from these parliamentary prerogatives, the aim of which is to foster transparency and debate, but with little corrective capacity. It has been observed that ‘the nature of all these rights is facilitative and informative, rather than obligatory and pressurising’.50 The EP holds no real formal power in relation to the Council and the European Council; however, it is not prevented from exercising general ‘supervision’ that may occasionally result in de facto accountability arrangements.51 This overview confirms that the formal powers vested in the EP – either derived from pre-existing rules or introduced by the new economic governance – have proved inadequate to support the augmented accountability requirements fostered by the recalibration of the legislative–executive balance in favour of intergovernmental bodies. To thicken the chain, some internal changes would be desirable. This might consist of formal amendments to the Rules of Procedure aiming at strengthening ex ante scrutiny mechanisms (such as the preliminary declaration of the Council and the European Council). Moreover, some de facto changes, leading to the enhancement of the role of parliamentary committees, might contribute to this aim.

46 Article 2a, para 4 of Council Regulation No 1466/97 of 7 July 1997, as amended by Regulation No 1175/2011 included in the Six-Pack. 47 ibid art 2ab. 48 C Fasone, ‘European Economic Governance and Parliamentary Representation: What Place for the European Parliament?’ (2014) 20 European Law Journal 175. 49 Rule 133 RoP. 50 Crum and Curtin (n 23) 81. 51 According to van de Steeg (n 39) 17, the chance of having a de facto accountability arrangement largely depends on the benevolence of the Presidency of the European Council.

58  Elena Griglio

B.  Partial Scrutiny by National Parliaments Since the intergovernmental method has a dominant influence over the functioning of the Council and the European Council, their accountability intensively relies on the national level. The link connecting national parliaments to the two intergovernmental institutions may be ideally divided into two parts. The first part connects each national parliament to the domestic executive. EU integration has undoubtedly modified the national model for delegation and accountability, and the impact of this modification has been multi-faceted and open-ended.52 In order to try and reduce the potential agency loss in the relationship with the national executives, some parliaments have created new control instruments.53 Others were already well suited to face the integration challenge, having access to a large variety of tools, from reserves to mandates.54 Broadly speaking, national parliaments have developed very different approaches to the scrutiny of EU affairs,55 behaving either as active parliaments or as scrutiny laggards.56 Regardless of these differences, in all European parliamentary systems the legislative–executive interaction relies on the confidence relationship.57 This formal arrangement is what ultimately strengthens the accountability line in the first part. Factual constraints relating either to the political continuity of government with parliamentary majority58 or to the lack of oversight incentives faced by MPs59 may apparently endanger or limit the implementation of this ‘hard’ tie. Moreover, it could be also objected that the accountability part is not a solid one for directly elected heads of state participating in the European Council who are not answearable to their respective national parliaments,

52 T Bergman, WC Müller and K Strøm, ‘Democratic Delegation and Accountability: Cross-national Patterns’ in K Strøm, WC Müller and T Bergman (eds), Delegation and Accountability in Parliamentary Democracies (Oxford, Oxford University Press, 2003) 109 ff. 53 E Damgaard, ‘Conclusion: The Impact of European Integration on Nordic Parliamentary Democracies’ in Strøm et al (n 52) 167. 54 On the use of ‘negotiating mandates’ by some national parliaments (namely those of Denmark, Austria, Estonia, Finland, Lituania, Poland, Slovakia and Sweden), see D Finke and M Melzer, Parliamentary Scrutiny of EU Law Proposals in Denmark: Why Do Governments Request a Negotiation Mandate? (Vienna, Institute for Advanced Studies, 2012) 127 ff. On the use of parliamentary reserves, see K Auel, O Rozenberg and A Thomas, ‘Lost in Transaction? Parliamentary Reserves in EU Bargains’ (2012) 10 OPAL Online Paper Series. 55 Among others, see T Raunio, ‘Holding Governments Accountable in European Affairs: Explaining Cross-national Variation’ (2005) 11 Journal of Legislative Studies 319. J Neyer, ‘Justified Multi-level Parliamentarism: Situating National Parliaments in the European Polity’ (2014) 20 Journal of Legislative Studies 126; C Neuhold and J Smith, ‘Conclusion’ in C Hefftler, C Neuhold, O Rozenberg and J Smith (eds), The Palgrave Handbook of National Parliaments and the European Union (London, Palgrave Macmillan, 2015) 668 ff. 56 K Auel and O Höing, ‘Parliaments in the Euro Crisis: Can the Losers of Integration Still Fight Back?’ (2014) 52 Journal of Common Market Studies 1192. 57 With the exception of Cyprus, the only presidential system in the EU, all EU Member States have either a parliamentary or a semi-presidential form of government (see P Kubicek, European Politics, 2nd edn (New York, Routledge, 2017) 176 ff) unfolding through the confidence relationship (DJ Samuels and MS Shugart, Presidents, Parties, and Prime Ministers: How the Separation of Powers Affects Party Organization and Behavior (New York, Cambridge University Press, 2010) 15 ff). 58 On the ‘problem of hand tying’ influencing the two-level game between national parliaments and governments in parliamentary systems, see R Pahre, ‘Endogenous Domestic Institutions in Two-Level Games and Parliamentary Oversight of the European Union’ (1997) 41 Journal of Conflict Resolution 148. 59 W Wessels, ‘National Parliaments and the EP in Multi-tier Governance: In Search for an Optimal Multi-level Parliamentary Architecture. Analysis, Assessment, Advice’ in Pernice et al (n 31) 104.

Divided Accountability of the Council and the European Council  59 as in the case of Cyprus, France and Lithuania.60 Nevertheless, the ultimate weapon61 is almost always there and this makes the accountability line a solid one. The second part of this ideal line is discontinued. The sum of the accountability mechanisms that each national parliament exercises in relation to its own executive does not seem to provide for effective collective accountability. A variety of inhibiting factors prevents the mere aggregation of accountability mechanisms from structuring a new collective architecture. In fact, national lines of accountability become blurred due to the negotiating process in the Council and the European Council.62 This risk has become manifest once majority voting has been elected as a general rule in the Council; under such conditions, each national parliament is no longer able to influence and control the final outcome. However, it can easily be demonstrated that a similar risk may occur even when unanimity is applied. In fact, intergovernmental decision-making at the EU level is not just a mere aggregation of individual votes. Collective dynamics affect the initial interests of governments involved63 and, in a sort of ‘two-level game’,64 national representatives may themselves claim that they have been outvoted or outmanoeuvred in order to fulfil short-term political goals.65 Moreover, informal settings,66 mostly based on the interaction between circles of ministers, trigger a particular mode of deliberative intergovernmentalism.67 This mode has often proved a valuable means for solving current institutional dilemmas; however, informality makes it extremely difficult to trace the mediation process between national representatives. It can therefore be argued that the Lisbon Treaty has reinforced national parliaments’ dialogue with the supranational institutions, including the Commission, but it has not

60 Against this objection, see M van der Steeg, ‘The European Council’s Evolving Political Accountability’ in M Bovens, D Curtin and P ’t Hart (eds), The Real World of EU Accountability. What Deficit? (Oxford, Oxford University Press, 2010) 121. Moreover, beyond formal ex post constraints, informal ex ante constraints should also be taken into consideration. See S Blavoukos, D Bourantonis and G Pagoulatos, ‘A President for the European Union: A New Actor in Town’ (2007) 45 Journal of Common Market Studies 235. For an exhaustive overview of the ex ante and ex post procedures and practices implemented by national parliaments to scrutinise the way in which their heads of government or state act in European Council meetings, see W Wessels et al, Democratic Control in the Member States of the European Council and the Euro Zone Summits (Brussels, European Parliament – Directorate General for Internal Policies, 2013) 30 ff. 61 The reference is to the removability of the government by parliament. See W Steffani, Parlamentarische und Präsidentielle Demokratie (Opladen, Westdeutscher Verlag, 1979) 45; and MS Shugart and JM Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics (New York, Cambridge University Press, 1992) 18 ff. 62 Bogdanor (n 21) 8. On collective decision-making in the Council, see F Hayes-Renshaw and H Wallace, ‘Executive Power in the European Union: The Functions and Limits of the Council of Ministers’ (1995) 2 Journal of European Public Policy 559 ff. 63 Crum and Curtin (n 23) 74. On the importance of voting rules on decision-making mechanisms in the Council, see D Naurin and H Wallace, Unveiling the Council of the European Union (New York, Palgrave Macmillan, 2008) 23 ff; and M Widgrén, ‘The Impact of Council Voting Rules on EU Decision-Making’ (2009) 55 CESifo Economic Studies 1 ff. 64 RD Putnam, ‘Diplomacy and Domestic Politics: The Logic of Two-Level Games’ (1988) 42 International Organization 427 ff; PB Evans, HK Jacobson and RD Putnam (eds), Double-Edged Diplomacy: International Bargaining and Domestic Politics (Berkeley, University of California Press, 1993); J Mo, ‘The Logic of Two-Level Games with Endogeneous Domestic Coalitions’ (1994) 38 Journal of Conflict Resolution 402 ff. 65 Bogdanor (n 21) 9. 66 T Christiansen and C Hefftler, ‘Informal Politics in the EU’ (2013) 51 Journal of Common Market Studies 1200. 67 U Puetter, ‘Informal Circles of Ministers: A Way out of the EU’s Institutional Dilemmas?’ (2003) 9 European Law Journal 109 ff.

60  Elena Griglio contributed to a recalibration of their interaction with the Council and the European Council, leading to more opportunities for democratic control. The overall lack of transparency over decision-making in intergovernmental institutions still represents a structural limit for national parliaments that are willing to control the behaviour of their ministers.

IV.  The Polarised Chain of Accountability and Delegation Featuring the Council and the European Council The discussion above has highlighted that both the EP and the national parliaments are expected to oversee the fragmented EU executive, including the Council and the European Council, in order to hold it accountable. Therefore, the accountability mechanism in the EU does not seem to suffer from a deficit of democratic representation;68 rather, problems arise in terms of how the two circuits interact and complement one another. The EU structure suffers from a lack of a consistent chain of accountability and delegation comparable to that in national systems.69 In national systems (see Figure 3.1), parliamentary oversight is framed in the chain of democratic accountability and delegation70 linking the public (the national electorate) to the public forum (parliament) and to the executive actors (the members of government). Parliaments hold governments accountable through their oversight function that represents Figure 3.1  The chain of accountability and delegation in national systems NATIONAL ELECTORATE

electoral power

policy‐making

PARLIAMENT

GOVERNMENT oversight

68 Bogdanor (n 21) 5. 69 See Crum (n 25) 380. 70 K Strøm, ‘Delegation and Accountability in Parliamentary Democracies’ (2000) 37 European Journal of Political Research 271 ff.

Divided Accountability of the Council and the European Council  61 the logical complement of the electoral/appointment mechanisms exercised at the stage of the formation of a government.71 This chain unfolds as a perfect circle: decisions taken by executive actors address the public, and the public can reverse the policy-making through its electoral power. By contrast, at the EU level, the chain of accountability and delegation is polarised – ie, divided into two sharply separated circuits – and the circle is broken (see Figure 3.2).72 National electorates delegate their sovereignty to national parliaments and to the EP, but neither of these two channels has the authority and the capacity to exercise effective oversight of the Council and the European Council. On the one hand, national parliaments can hold their own executive accountable for decisions adopted in these two institutions by relying on the confidence relationship and Figure 3.2  The chain of accountability and delegation linking the Council and the European Council to the two channels of parliamentary representation NATIONAL ELECTORATE

electoral power

policy-making

EUROPEAN PARLIAMENT

electoral power

NATIONAL PARLIAMENT

k y-ma polic

ing

oversight

NATIONAL NATIO GOVERN GOVERNMENTS

COUNCIL

policy-making

EUROPEAN COUNCIL

Supervisory powers exercised by the EP in relation to the Council and the European Council Partial control of the decision-making in the Council and the European Council by national parliaments

71 Crum and Curtin (n 23) 65. 72 To explain the relationship between national parliaments and the European Council, six theoretical models have been identified in Wessels et al (n 60) 20 ff.

62  Elena Griglio on the oversight powers that arise out of this prerogative. However, the scope of this action is partial, as it covers only one component of the Council and the European Council. The combination of the confidence/oversight mechanisms is not able to provide any guarantee on the decisions adopted by the two bodies. On the other hand, the EP has a direct relationship with both the European Council and the Council in their capacity as supranational bodies. However, this relationship is not at all structured in terms of confidence and is therefore not comparable to the oversight function supported by national parliaments. The powers of the EP can be considered a form of informative and facilitative supervision (see section III.A above). The supervisory prerogatives held by the EP do not substantially differ from those of the Council or the European Council, which is peculiar, given the rather different place held by the two institutions in the decision-making process. An explanation may be found in the non-binding nature of the tools available to the EP which are not affected by the nature of the addressee. This explicative model demonstrates why the EU has not yet developed a supranational chain of parliamentary accountability for the Council and the European Council. Much of the legitimacy of these two institutions is derived from the interaction between the legislative and the executive branches at the national level. If the two intergovernmental institutions were still to rely on strict unanimity for decision-making, there might be more chances to ‘close’ the accountability circuit relying on national parliaments and less need to count on the EP circuit. However, as the two bodies have lost part of their intergovernmental features in favour of supranational prerogatives, the accountability circuit relying on national forms of government turns out to be inadequate and the role of the EP becomes essential.

V.  Strengthening the Chain of Accountability through Interparliamentary Cooperation There is widespread agreement that formal changes are needed to adapt the polarised chain of accountability featuring the Council and the European Council to the current legitimacy challenges. These may include the creation of a new channel of parliamentary representation (a second – or third – Chamber),73 the redesign of the relationship between the executive and the legislature,74 and the strengthening of the EP’s oversight powers in relation to intergovernmental institutions.75 However, an alternative, less intrusive and more conservative solution may be available by focusing on what, under existing Treaties, could give the two existing channels of parliamentary representation the opportunity to strengthen the chain that links them to

73 Some of these solutions are considered in Pernice et al (n 31). On the creation of a eurozone-specific parliamentary body, see V Kreilinger and M Larhant, ‘Does the Eurozone Need a Parliament? (2016) 176 Jacques Delors Institute Policy Paper; and I Cooper, ‘A Separate Parliament for the Eurozone? Differentiated Representation, Brexit, and the Quandary of Exclusion’ (2017) 70 Parliamentary Affairs 655 ff. 74 For an overview of the different options on the ground, see M Schackleton, ‘Transforming Representative Democracy in the EU? The Role of the European Parliament’ (2017) 39 Journal of European Integration 191 ff. 75 C Alcidi et al, Enhancing the Legitimacy of the EMU Governance (Brussels, European Parliament – Directorate General for Internal Policies, 2014) 86.

Divided Accountability of the Council and the European Council  63 the Council and to the European Council. One possibility relates to the interparliamentary dimension. IPC in the EU represents a rather controversial topic in the literature. Some scholars have identified a further strengthening of IPC as a potential solution to the weaknesses of EU democratic accountability, ‘a kind of “third way” for democratic participation and legitimacy within the Union’,76 an ‘added value’ in order to bring about parliamentary scrutiny of EU affairs.77 In contrast, other scholars have criticised this practice, claiming it to be inefficient78 and assuming that more coordination between national parliaments and the EP ‘should be considered as secondary’.79 Notwithstanding these different perceptions, it is undeniable that after the entry into force of the Lisbon Treaty, this field has been revitalised, due to new interparliamentary formats focused on sectorial policy areas and leading to an extension of the scope and intensity of interparliamentary relations:80 the Conferences on Common Foreign Security Policy, the Common Security Defence Policy and on Stability, Economic Coordination and Governance (SECG), established in 2012 and 2013 respectively; the joint parliamentary group on Europol, started in October 2017; and now the Interparliamentary Committee Meeting on Eurojust, introduced by Article 67 of Regulation (EU) 2018/1727. The institutional aims of these new formats go beyond the mere exchange of information and best practices between parliaments at the national and European levels. Their most significant aim is to evaluate mechanisms implementing EU policies in those policy areas where the influence of the executive branch is overwhelming,81 thus strengthening the oversight capacity of parliaments.82 Some of these new formats are also deemed to support a form of ‘horizontal’ oversight, with national parliaments ‘enlisted to function as one more layer of surveillance, keeping an eye on each other’.83 This clearly sets a recalibration of the solutions to the democratic accountability challenge. The results achieved so far by the new formats have not been considered completely satisfactory: the internal disputes between the EP and national parliaments on the conception itself of the new interparliamentary bodies have not allowed their potential to be fully exploited.84 However, from a normative point of view, IPC might play a strategic

76 A Manzella, ‘Is the EP Legitimate as a Parliamentary Body in EU Multi-tier Governance?’ in Pernice et al (n 31) 141 ff. 77 J Wouters and K Raube, ‘Europe’s Common Security and Defence Policy: The Case for Inter-parliamentary Scrutiny’ (2012) 90 Leuven Centre for Global Governance Studies Working Paper, ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp81-90/wp90.pdf. 78 B Rittberger, ‘Constructing Parliamentary Democracy in the European Union: How Did it Happen?’ in B Kohler-Koch and B Rittberger (eds), Debating the Democratic Legitimacy of the European Union (Lanham, Rowman & Littlefield, 2007) 197 ff; J O’Brennan and T Raunio, ‘Conclusion: National Parliaments Gradually Learning to Play the European Game’ in J O’Brennan and T Raunio (eds), National Parliaments within the Enlarged European Union: From Victims of Integration to Competitive Actors? (Abingdon, Routledge, 2007) 272 ff. 79 Cygan (n 22) 715. 80 C Hefftler and K Gattermann, ‘Interparliamentary Cooperation in the European Union: Patterns, Problems and Potential’ in Hefftler et al (n 54). 81 Wouters and Raube (n 77). 82 I Cooper, ‘Parliamentary Oversight of the EU after the Crisis: On the creation of the “Article 13” Inter-parliamentary Conference’ (2014) Luiss School of Government Working Paper Series 21; Hefftler and Gattermann (n 80). 83 Cooper (n 82) 17. 84 A Herranz-Surrallés, ‘The EU’s Multilevel Parliamentary (Battle)Field: Inter-parliamentary Cooperation and Conflict in Foreign and Security Policy’ (2014) West European Politics 957 ff; A Herranz-Surrallés, ‘The Politicization

64  Elena Griglio role in terms of strengthening the chain of accountability and delegation of the Council and the European Council.85 It would be inappropriate to assume that IPC can exercise an oversight power of its own, acting as a third channel of parliamentary representation and supporting an autonomous line of accountability. Interparliamentary bodies lack both the powers and the procedures to exercise if not a veto or a sanction, then at least a joint parliamentary ‘influence’ over the EU executive. The search for a dimension that is able to grant effective accountability and legitimacy would therefore lead to the adoption of a different perspective, based on the instrumental contribution of IPC to the oversight relationship linking national parliaments and the EP, in their domestic constitutional framework, to the executive power.86 On the one hand, IPC may contribute to strengthening the second part of the accountability circuit that links national parliaments to the Council and the European Council. Even in areas of decision-making supported by majority voting, it can alleviate some of the problems of ‘multi-level parliamentarism’:87 asymmetric information, limited oversight of intergovernmental decision-making, and different approaches to the scrutiny of EU affairs.88 In response to these limits, participation in the interparliamentary dimension may enable national parliaments to compare and share strategies developed at the domestic level in holding their own government to account for the positions taken in the Council and the European Council. It may help them to expand their focus beyond merely holding the executive to account, simultaneously improving horizontal coordination between them to forge a ‘Euro response’;89 in other words, to balance collective and individual engagement in the EU decision-making process. On the other hand, IPC may also support the supervisory powers that the EP exercises in relation to the Council and the European Council. This link will never be thickened enough to become like the solid line connecting national legislative and executive branches. In the peculiar EU system of checks and balances, a transformation of this kind may eventually be conceivable in the relationship of the EP with the Commission, but certainly not with the EU intergovernmental institutions. Nevertheless, IPC can enable the EP to facilitate the exercise of ‘soft’ oversight powers90 in relation to the Council and the European Council, providing a complete and exhaustive vision of the political directions defined at the national level. Access to this information may of Interparliamentary Relations in the EU: Constructing and Contesting the “Article 13 Conference” on Economic Governance’ (2016) 14 Comparative European Politics 196 ff; D Fromage, ‘European Economic Governance and Parliamentary Involvement: Some Shortcomings of the Article 13 Conference and a Solution’ (2016) 1 Les Cahiers Européens de Sciences Po. 85 On this perspective, see the sixth theoretical model identified in Wessels et al (n 60) 27. 86 Crum and Curtin (n 23) 66. 87 B Crum and JE Fossum, ‘The Multilevel Parliamentary Field: A Framework for Theorizing Representative Democracy in the EU’ (2009) 1 European Political Science Review 249 ff; N Lupo, ‘Parlamento europeo e Parlamenti nazionali nella Costituzione “composita” dell’Unione europea: le diverse letture possibili’ in A Ciancio (ed), Nuove strategie per lo sviluppo democratico e l’integrazione politica in Europa (Rome, Aracne, 2014) 365 ff. 88 T Raunio, ‘Holding Governments Accountable in European Affairs: Explaining Cross-national Variation’ (2005) 11 Journal of Legislative Studies 319. See also Cristina Fasone and Maria Romaniello, and Katharina Meissner and Guri Rosén, chs 10 and 11 in this volume respectively. 89 C Hefftler and W Wessels, ‘The Democratic Legitimacy of the EU’s Economic Governance and National Parliaments’ (2013) 13 IAI Working Papers. 90 A Benz, ‘Linking Multiple Demoi: Inter-parliamentary Relations in the EU’ (2011) 6 IEV-Onlineb, www.fernuni-hagen.de/iev.

Divided Accountability of the Council and the European Council  65 prove to be a strategic tool for re-invigorating EP surveillance powers. These are de jure (in their form) soft powers and yet they may become de facto (in their content) hard powers if the EP manages to incorporate national perspectives into its supervision,91 therefore addressing the Council and the European Council both as supranational and as intergovernmental institutions. To conclude, the proposed perspective highlights the instrumental contribution of IPC to the strengthening of the accountability circuits respectively linking the EP and national parliaments to the Council and the European Council. To realise this aim, some major changes in the conception of the aims, scope and functional organisation of the different formats of interparliamentary cooperation would be required, the empirical implementation of the proposed perspective being deferred to future, more focused studies.92

VI.  Conclusions: Collective Accountability or Collective Oversight of the Council and the European Council? In the accountability of the Council and the European Council lies a vulnerability for the democratic legitimacy of the EU structure. This problem has become more acute following the entry into force of the Lisbon Treaty due to the failure of adapting the accountability arrangement to the increased imbalance in the executive–legislative relationship fostered by the enhancement of the intergovernment logic of decision-making. Since both the Council and the European Council rely on different logics of decisionmaking – one intergovernmental and the other supranational – their chain of accountability is split into two circuits supported by the two channels of parliamentary representation: the EP and national parliaments. In the last few years, neither channel has experienced a significant adaptation of its capacity to hold the ever more powerful executives to account. The intergovernmental framework still plays a dominant role,93 the national level prevails and no space is left for collective accountability. On the one hand, despite attempts made by some Member States to reinforce the parliamentary scrutiny of EU affairs, no substantial change has affected the overall control and corrective capacity of national parliaments in relation to intergovernmental bodies. Problems of asymmetry, inconsistency and fragmentation demonstrate that the circuit relying on national parliaments is not suitable to provide exhaustive accountability arrangements for the Council and the European Council. Each national parliament can oversee and sanction or change just one government or executive body.94 Collectively, national parliaments seriously struggle to oversee every intergovernmental decision and are incapable of doing so when decisions are adopted by qualified majority voting.

91 On this vision, see Manzella (n 76) 151. 92 For a concrete perspective on how to reconceive IPC in order to strengthen its instrumental contribution to parliamentary oversight, see N Lupo and E Griglio, ‘The Conference on Stability, Economic Coordination and Governance: Filling the Gaps of Parliamentary Oversight in the EU’ (2018) 40 Journal of European Integration 358 ff. 93 See Fabbrini (n 7) 1022, referring to the overall EU legitimacy. 94 Lord (n 22) 680.

66  Elena Griglio On the other hand, the EP is not capable by itself to hold the Council and the European Council to account, as it often lacks the formal powers to prevent, veto, modify or even assess intergovernmental decisions. The seismic shifts in the EU governance experienced over the last decade and boosted by the economic crisis have radically changed the position of the Council and the European Council in the EU decision-making process. However, the Councils have not been supported by adequate changes in the formal accountability arrangement vested in the EP. Formal correctives aiming at strengthening the supervisory powers of the EP have not been sufficient. Even if the two mechanisms relying on national parliaments and on the EP are combined, the collective accountability of the Council and the European Council remains the weakest point in the overall chain of delegation.95 In order to overcome the accountability gap increased by the recalibration in the executive–legislative relationship, this chapter has reflected on whether some positive developments leading to greater democratic legitimacy, participation and representativeness may be possible by better connecting the existing channels of parliamentary representation. The proposed solution supports a vision of combined parliamentary oversight strategies based on the close interaction of the national and European dimensions through IPC. Contrary to apparently similar explicative models,96 it is assumed that interparliamentary cooperation is merely instrumental to the thickening of the already-existing accountability lines: the advocated cooperation among parliaments is not aimed at setting or strengthening a ‘field’ among parliaments,97 but instead targets the relationship between each parliament and its own government. The challenge for the EU democratic legitimacy is shifting from a divided to a collective accountability arrangement for the Council and the European Council. This requires an incremental processing of the intergovernmental logic into the supranational logic, which does not need to rely on structuring a formal ‘collective’ oversight shared by the EP and national parliaments.98 In fact, what should be ‘collectivised’ is the access to the parliamentary information, procedures and strategies of EU parliaments. The perspective of an interparliamentary alliance is therefore not instrumental to the development of a formally ‘joint’ oversight framework, which would require structural changes in the EU architecture. Rather, it is advocated that the already-existing lines of accountability may be thickened in order to promote a substantially joint but formally separated oversight arrangement based on coordination among the existing circuits.

95 P de Schoutheethe, The Case for Europe: Unity, Diversity and Democracy in the European Union (Boulder, Lynne Rienner, 2002) 31. 96 Wessels et al (n 60) 27. 97 Crum and Fossum (n 87). 98 The fulfilment of collective oversight is dampened both by national parliaments and by the EP. The former most often choose to act individually at a domestic level rather than engaging in joint actions at the EU level; see T Winzen, Constitutional Preferences and Parliamentary Reform: Explaining National Parliaments’ Adaptation to European Integration (Oxford, Oxford University Press, 2017). The EP usually prefers centralised oversight based on the scrutiny performed by itself; see Cooper (n 82) 17.

4 Executive–Legislative Relations and Delegated Powers in the European Union Continuous Recalibration? THOMAS CHRISTIANSEN AND SABINA LANGE

I. Introduction This chapter examines the changing nature of executive–legislative relations in the European Union (EU) in the area of delegated powers1 – the area of rule-making where the European Commission adopts measures to implement, supplement or amend non-essential elements of EU legislation. This form of ‘non-legislative rule-making’ is delegated to the European Commission in order to ensure that EU legislation is implemented in an efficient and uniform manner. The European Commission is uniquely placed to carry out such a role because, unlike national administrations, it has the capacity to identify the most suitable manner of implementing EU policies uniformly across the EU’s territory. Also with respect to other tasks that are essential to the functioning of the single market – for example, setting guaranteed prices for agricultural products, updating the annexes of legislative acts, or authorising regulated goods like chemicals or genetically modified organisms to come onto the market – only the European Commission is a logical agent to carry these out. The importance of delegated and implementing acts is apparent by looking at their numbers. In Table 4.1, we see the number of adopted legislative, delegated and implementing acts per year since the entry into force of the Lisbon Treaty. We can observe that the implementing acts vastly outnumber the legislative acts adopted in any given year. Delegated

1 The use of the term ‘delegated powers’ in the EU is complicated by the fact that there is a legal distinction, since the coming into force of the Lisbon Treaty, between ‘delegated acts’ (adopted under art 290 TFEU) and ‘implementing acts’ (adopted under art 291 TFEU). However, given that the concept of implementing acts pre-dates the Lisbon Treaty and historically covered both types of measures, in this chapter we use the terms ‘delegated powers’, ‘delegated acts’ and ‘implementing acts’ interchangeably unless specific reference is made to one or the other type of act post-Lisbon.

68  Thomas Christiansen and Sabina Lange Table 4.1  Numbers of adopted legislative acts, implementing acts, implementing measures (RPS) and delegated acts (2010–18) Year

Legislative acts

Implementing acts

Implementing measures adopted under RPS

Delegated acts adopted

2010

66

1,812

168

2011

64

1,625

150

7

2012

87

1,657

186

38

2013

79

1,716

158

57

2014

192

1,563

180

130

2015

57

1,506

138

104

2016

67

1,448

123

137

2017

74

1,687

113

132

2018

73

1,503

98

119

Total

759

14,517

1,314

728

4

acts, while growing in number as the legal bases on which they may be adopted expand, are less numerous. This is due to the fact that delegated acts may only be of general application, while implementing acts may be of general and individual application. Authorisations of individual products seeking market access represent a significant share of the number of implementing acts, demonstrating that such rule-making lies at the heart of the single market. Delegated powers also tend to be highly technical, requiring specialised knowledge of the complex subject matter at hand, and often need to be adopted frequently and/or swiftly in order to maintain the functioning of regulatory regimes. For these reasons, legislatures at both the national level and at the EU level have developed the practice of delegating such powers to the executive. However, the logic of these original driving forces behind the establishment of the comitology system subsequently began to clash with, first, concerns over the appropriate and effective oversight of the Commission, and, second, questions about the absence of the European Parliament (EP) as it evolved into a genuine co-legislator.2 While the general idea and practice of delegated powers is therefore not controversial, the oversight over these powers may well be. In the EU, the scrutiny of its particular system of delegated powers that has evolved over time has proven to be a bone of contention between the institutions. Despite the relative obscurity and the often highly technical nature of these acts, the framework governing delegated powers in the EU has been a frequent site of inter-institutional tensions, generating frequent disputes between the EP, the European Commission and the Council of the European Union.

2 See, eg, KSC Bradley, ‘The European Parliament and Comitology: On the Road to Nowhere?’ (1997) 3 European Law Journal 230, 236; J Blom-Hansen, ‘The EU Comitology System: Taking Stock before the New Lisbon Regime’ (2011) 18 Journal of European Public Policy 607, 609.

Executive–Legislative Relations and Delegated Powers in the European Union  69 This pattern of inter-institutional tensions, together with the changing nature of the system over time, makes the practice of delegated powers in the EU an interesting case for observations about the balance of executive–legislative relations. In this chapter we seek to chart the manner in which the balance between executive and legislative actors has changed in terms of the scrutiny of delegated powers, and to address the question of whether the most recent reform of delegated powers following the Lisbon Treaty has recalibrated a historical imbalance in favour of the executive that had been present in this system. Originally, in the period between the launch of the integration in the 1950s and the arrival of the EP as a genuine influence on the legislative process in the 1980s, the scrutiny of delegated powers in the then European Communities had been an exclusively executive affair. During this phase of the integration process, only Member State representatives exercised an element of control over the European Commission’s use of these powers. Accordingly, the attention of both practitioners and academic scholars was focused on the relationship between actors at the national and European levels.3 However, starting with the Single European Act (SEA) of 1986, the involvement of the EP in the scrutiny of powers delegated to the European Commission has been growing gradually – at times even dramatically – as the EP’s legislative role advanced through successive Treaty reforms. This chapter first establishes the place and the significance of delegated powers in the EU. It proceeds by outlining the nature of decision-making in this domain, charting the growing importance that the EP has developed in relation to the Commission’s delegated powers. The particular focus in relation to the EP’s role is on the impact that this evolution has had on executive–legislative relations at the EU level. Beyond an examination of the EP’s formal powers, the chapter also reviews the challenges the institution has had to confront in terms of its internal procedures, expertise and resources, in order to develop a comprehensive understanding of the capacity of the EP to hold the Commission to account in its exercise of delegated powers. The chapter concludes with an assessment of the degree to which the Parliament’s involvement in the scrutiny of delegated powers has facilitated a recalibration of executive–legislative relations in the post-Lisbon era.

II.  The Evolution of the European Commission’s Delegated Powers The roots of the tensions existing in the area of non-legislative rule-making powers can be understood by looking back at the changes that this domain underwent over time and by presenting a more detailed account of the nature of decision-making when it comes to the adoption of delegated and implementing acts. The changing role of the EP is at the forefront of these changes and with it also the evolution (and possible recalibration) of executive– legislative relations in this area. It is worth noting that the origins of the Commission’s delegated powers in fact lie outside the framework of the Treaties. The SEA, which entered into force in 1987, brought the 3 M Alfe, GJ Brandsma and T Christiansen, ‘The Functioning of Comitology in Practice’ in T Christiansen, J Oettel and B Vaccari (eds), 21st Century Comitology: The Role of Implementation Committees in the Wider European Union (Maastricht, EIPA, 2009).

70  Thomas Christiansen and Sabina Lange implementing measures, by then commonly referred to as ‘comitology’, within the Treaties. It did so simply by expanding the powers of the Council to include the power to ‘confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down’.4 Details were to be regulated by a subsequent Council Decision to be adopted unanimously by the Council after obtaining the opinion of the EP.5 However, the general contours of decision-making in comitology were long established, having had their origins in the implementation of the Common Agricultural Policy (CAP) since the 1960s: the Commission first drafted such acts and later adopted them, but only these had been scrutinised by a committee composed of representatives of the Member States. After deliberation in such ‘comitology committees’, the Commission would proceed with the adoption of the act after it had received a positive opinion or, in some cases, if it avoided a negative opinion, in a vote of the relevant committee set up by the original legislative act delegating the powers to the Commission. Council Decision 87/373,6 which was adopted shortly after the SEA entered into force and was referred to as ‘the (first) comitology Decision’, built upon the existing practice of the comitology committees, codified horizontal rules regarding the work of the committees, and limited the number of procedures and their variants. At this stage, the EP was not yet given any role in relation to the work of the committees. The Council, by contrast, functioned as ‘a higher instance’. Details differed among different procedures and their variants, but in principle the Council had the final say, including the possibility to overturn the opinion of the Committee and block the Commission from adopting the proposed implementing act. However, the fact that the Commission’s delegated powers became codified in the Treaties also made it plausible for the EP to argue – as it started doing – that it should be able to effectively scrutinise the implementation of legislation it had been involved in passing, MEPs should also have full knowledge of what the Commission does. The initial battles were about transparency and access to information in the area of comitology: knowledge about meetings of committees, their agendas and decisions, and indeed the actual access to draft acts being proposed by the Commission.7 The dynamics involving the SEA, the impetus given by the White Paper on the Completion of the Single Market and the momentum of the Delors Commission working on its implementation all appear to have created a favourable environment for the EP to put forward these arguments, and eventually to reach an agreement with the Commission to that effect. With the 1988 Plumb-Delors agreement,8 the Commission agreed to pass on to the EP all ‘unusual measures’. A 1996 agreement between the EP and the Commission,

4 Article 10 of the SEA, supplementing art 145 EC. 5 However, it was only after the Treaty of Lisbon came into force that a new regulation adapting the comitology procedures was adopted by the EP and the Council (through the ordinary legislative procedure). 6 Council Decision 87/373 of 13 June 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission [1987] OJ L197/33. 7 See, eg, CF Bergström, H Farrell and A Héritier, ‘Legislate or Delegate? Bargaining over Implementation and Legislative Authority in the EU’ (2007) 30 West European Politics 338; GJ Brandsma, Backstage Europe: Comitology, Accountability and Democracy in the EU (Utrecht, Utrecht University, 2010). 8 SG (88) D/03026; EPDok.123.217 in European Parliament, ‘Conference of Committee Chairmen: The Application of the Modus Vivendi on Comitology: Practical Guidelines for Parliament’s Committees’, 7 July 1995, 21–22.

Executive–Legislative Relations and Delegated Powers in the European Union  71 the Samland-Williamson agreement,9 strengthened this line of the EP’s involvement with comitology by requiring the Commission to also pass on to the EP the committee meetings’ agendas and vote records. These and further information and transparency requirements, such as passing on to the EP the summary records of the meetings and the list of authorities and organisations, which the Member States’ experts represent in a meeting, were included in the first reform of the comitology. The reform was agreed through the second comitology Decision adopted by the Council in 1999.10 In a subsequent agreement, the EP and the Commission further clarified rules on transmission of documents and transparency measures.11 The 1999 Decision also formalised the first step towards the EP’s involvement in the scrutiny over individual implementing measures. Building on the similar elements of the 1994 so-called ‘modus vivendi’ agreement between the EP and the Commission,12 and limited to those implementing measures submitted on the basis of the basic acts adopted according to the co-decision procedure, ie, the acts in which the EP acted as (co-)legislator, the second comitology decision obliged the Commission to consider the EP’s views when the EP indicated that the draft measure exceeded the implementing powers conferred upon the Commission in the basic act. The Commission had to review the draft measure in question, but it was not bound to take the EP’s view on board.13 This right of the EP remains within the current framework for the adoption of implementing acts as laid down in Regulation 182/2011,14 which was adopted after the entry into force of the Lisbon Treaty. This upgraded the so-called ‘right of scrutiny’ for the EP and for the Council. Extending this right is a recognition that it is the right of both legislative institutions to check whether a Commission’s draft measure complies with the basic act these institutions previously adopted. As a matter of fact, as a result of the new distinction between implementing and delegated acts introduced by the Treaty, the respective roles of the EP and the Council on the one hand, and of the Member States on the other have also been more clearly delineated in this domain. Post-Lisbon, Member States are now clearly responsible for the scrutiny of the Commission’s adoption of implementing acts, adopted under Article 290, whether directly through their delegates in comitology committees and, if required, via their representatives in the Appeal Committee. The EP and the Council, on

9 Modus Vivendi of 20 December 1994 between the European Parliament, the Council and the Commission concerning the implementing measures for acts adopted in accordance with the procedure laid down in Article 189b of the EC Treaty [1996] OJ C102/1. 10 Council Decision 1999/468 of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [1999] OJ L184/23. 11 Agreement between the European Parliament and the Commission on procedures for implementing Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission [2000] OJ C339/270, annexed to European Parliament Resolution of 8 May 2000 on the conclusion of an interinstitutional agreement between the European Parliament and the Commission on procedures for implementing Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission [2000] OJ C339/26. 12 Council Decision 1999/468 (n 10). 13 Article 8 of Council Decision 1999/468 of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [1999] OJ L184/23. 14 Regulation 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Members States of the Commission’s exercise of implementing powers [2011] OJ L55/13.

72  Thomas Christiansen and Sabina Lange the other hand, act as guardians of the EU’s legislative institutions and have the final say over delegated acts adopted under Article 290 – an area in which the Member States have no formal involvement. It is therefore with regard to delegated acts that the role of legislators, and with it the EP, has changed significantly compared to the pre-Lisbon era. However, this was not a sudden change, since the equal status of the EP with regard to delegated acts had been foreshadowed by the Constitutional Treaty that resulted from the Convention on the Future of Europe, which itself was an interesting case of the recalibration of executive–legislative relations in the revision of Treaties. The Convention involved a significant number of both Members of the European Parliament (MEP) and national parliamentarians, and its outcome, albeit moderated by national governments in a subsequent intergovernmental conference, can also be understood as a reflection of the desire by legislators to be involved in equal measure in the scrutiny of implementing the legislation previously adopted by them. New inter-institutional conflicts then arose when the Constitutional Treaty failed in its ratification, and the EP sought to achieve the desired involvement in comitology through legislative means.15 This search for an arrangement below the level of Treaty change resulted in the adoption of the 2006 amendment to the 1999 Comitology Decision.16 The amendment introduced the so-called Regulatory Procedure with Scrutiny (RPS), which for the first time created a mechanism through which the EP could actually block the adoption of draft implementing measures. The RPS procedure introduced a cumbersome process for the scrutiny of those implementing measures that were seen to require legislative oversight by the co-legislators. And while remaining on the statute books even after Lisbon (since the many basic acts which introduced the procedure before the entry into force of the Treaty of Lisbon have not yet been revised to include the changes introduced by Lisbon), it was essentially a pre-cursor to the creation of delegated acts and a related scrutiny procedure that provides for full equality between the EP and the Council. In this regard, the Lisbon Treaty states: [T]he delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.17

The Lisbon Treaty therefore not only introduced a binding power for the EP, but it also put it on a par with the Council. In practice, this means that after the Commission adopts a delegated act, its application is suspended for the previously agreed period so as to allow the EP and the Council to exercise their control.18 The EP by absolute majority or the Council by the super-qualified majority voting (QMV)19 have the right to object to the

15 T Christiansen and B Vaccari, ‘The 2006 Reform of Comitology: Problem Solved or Dispute Postponed?’ (2006) Eipascope 3. 16 Council Decision 2006/512 of 17 July 2006 amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission [2006] OJ L200/11. 17 Article 290(2)(b) TFEU. 18 The period of objection is defined in Common Understanding on Delegated Acts, 14 April 2011, 8753/1/11 ‘on a case by case basis in each basic act should in principle be of two months, and not less than that, extendable by two months at the initiative of the European Parliament or the Council’. 19 Article 238(2) TFEU applies, raising the QMV number of Member States criteria from 55 per cent to 72 per cent.

Executive–Legislative Relations and Delegated Powers in the European Union  73 act within this period, thereby requiring the Commission to withdraw the act and, if necessary, proposing a new act, taking the EP’s or the Council’s reasons for objection into account. Unlike in the case of implementing acts, Article 290 of the Treaty on the Functioning of the European Union (TFEU) did not provide for the adoption of horizontal rules or the creation of a detailed procedure for delegated acts. The Treaty stated that ‘objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts’.20 However, recognising the need for some kind of framework, the three institutions agreed on a ‘Common Understanding’,21 in which they set out guidelines on issues such as the preparation of the acts, the transmission of documents, the computation of time limits for objection, the duration of delegations of power, revocation, urgency procedure as well as standard clauses to be used in basic acts. Yet, while providing for greater clarity of legislative choices and genuine equality among legislative institutions, the two kinds of delegated powers now available in the Treaty have nevertheless created new lines of confrontation. This is because the actual choice of the type of delegation and of procedure to be included in a basic act is insufficiently defined in the Treaty and needs to be made in the course of legislative negotiations. With the expansion of EP’s legislative powers to the vast majority of policy areas and with the newly acquired equal status in controlling the Commission over the exercise of delegated acts, a number of new ‘battlefronts’ were opened: first, the choice of the type of delegation to the Commission; and, second, in the case of delegated acts, over the specifics of the control mechanism to be imposed, be it the scrutiny period or the duration of delegation. Debates about these issues soon entered the majority of legislative negotiations, with the Council’s and the EP’s preferences having been formulated early on.22 Representatives of the Member States in the Council have resisted the demand for sharing powers with the EP that they had previously exercised exclusively in comitology committees. There were reservations, in particular, in relation to replacing the ex ante control provided by the comitology system with the ex post control of the Commission provided by Article 290. The EP for its part paid close attention to provisions on delegated acts in the course of legislative negotiations in order to maximise the reach of its newly acquired powers. In 2012, the three institutions turned to the Court of Justice of the European Union (CJEU) for guidance on delineation between delegated and implementing acts. The judgment in Biocides23 did not present a magical solution to the tensions between the preferences of the two legislative institutions – the EP and the Council – in inter-institutional negotiations over the use of delegated and implementing acts. However, it did have an effect on legislative–executive relations by noting ‘that the EU legislature has discretion when it decides to confer a delegated power on the Commission pursuant to Article 290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU’.24 20 Article 290(1) TFEU. 21 Common Understanding on Delegated Acts, 14 April 2011, 8753/1/11. An updated version is attached to the Interinstitutional Agreement of 13 April 2016 between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making [2016] OJ L123/1. 22 GJ Brandsma and J Blom-Hansen, Controlling the EU Executive?: The Politics of Delegation in the European Union (Oxford, Oxford University Press, 2017). 23 Case C-427/12 European Commission v European Parliament and Council of the European Union [2014]. 24 ibid para 40.

74  Thomas Christiansen and Sabina Lange While the Treaty provides for the legal basis for delegated powers, the distinctive logic of the two types and the need for a control mechanism, the more detailed arrangements for such a framework of control have been subsequently agreed in secondary legislation25 and in soft law. In 2015, the institutions negotiated an Interinstitutional Agreement on Better Law-Making (IIABLM),26 which was largely based on the judgment of the CJEU in the abovementioned Biocides case. The IIABLM sought to address a number of issues that required a shared understanding among the institutions following the changes that were introduced by the Lisbon Treaty, including questions surrounding delegated and implementing acts. The passage of the agreement dealing with it begins with the following statement: The three Institutions underline the important role played by delegated and implementing acts in Union law. Used in an efficient, transparent manner and in justified cases, they are an integral tool for better law-making, contributing to simple, up-to-date legislation and its efficient, swift implementation. It is the competence of the legislator to decide whether and to what extent to use delegated or implementing acts, within the limits of the Treaties.27

With the statement in this paragraph, the three institutions – the EP, the Council and the Commission – affirmed not only the significance of the Commission’s delegated powers, but also the difficulties they face in their governance. The paragraph starts by confirming their importance (against the risk of abandoning the acts altogether) and listing the arguments to that effect. Table 4.2 shows the numbers and percentages of concluded legislative acts containing provisions for adoption of delegated acts. This overview of relations between the EP and the European Commission’s delegated powers has shown that the EP’s powers evolved in three directions (in addition to – and indeed also because of – the EP’s growing involvement in treaty revision).28 First, when setting the rules for the work of implementation committees, the EP’s role changed from merely issuing (non-binding) opinions to becoming the de facto co-legislator as the Treaty requires the rules for the adoption of implementing acts to be adopted by the ordinary legislative procedure. Second, the EP’s pursuit of achieving better oversight over the Commission’s delegated powers, which had started as an inter-institutional agreement on a narrower scope of access to information, evolved into a far more sophisticated set of arrangements involving the creation of a publicly accessible register. This so-called ‘comitology register’ contains information on the work of the committees with documents ranging from drafts to voting sheets and summary records, and thereby constitutes a sea change in terms of the transparency of the system. More recently, the register of Delegated Acts launched in 2017 is actually inter-institutional, with all three institutions involved feeding information into it, and thus represents a model for the reform of comitology register.29

25 Christiansen and Vaccari (n 15); and Common Understanding on Delegated Acts, 14 April 2011, 8753/1/11. 26 Interinstitutional agreement of 13 April 2016 between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making [2016] OJ L123/1. 27 ibid point 26. 28 See, eg, T Christiansen, G Falkner and KE Jørgensen, ‘Theorising EU Treaty Reform: Beyond Diplomacy and Bargaining’ (2002) 9 Journal of European Public Policy 12. 29 Interview with an official from the European Commission, 17 September 2019.

Executive–Legislative Relations and Delegated Powers in the European Union  75 Table 4.2  Number of legislative acts with provisions for DA and number of paragraphs providing for DA (2010–18)

Year

Number of concluded legislative files including provisions for DA

Number of paragraphs providing for DA

Total number of legislative acts

Share of concluded legislative acts including provisions for DA (%)

2010

22

62

66

33

2011

26

91

64

41

2012

22

207

87

25

2013

62

383

79

78

2014

76

350

192

40

2015

22

79

57

39

2016

34

273

67

51

2017

33

156

74

45

2018 Average

33

172

73

45

36.7

197

84.3

40

Source: Based on the information from the EP’s Unit for Reception and Referral of Official Documents.

Third, and most importantly, the EP achieved full parity with the Council with regard to the control over delegated acts, now that Articles 290 and 291 offer two separate avenues for the EU-level follow-up to legislative acts. In sum, it is apparent that the EP has come a long way in terms of balancing its powers vis-a-vis the European and national executives. As the analysis of the three different roles of the EP shows, a strong legislative dimension has been introduced into a field – delegated powers – that was previously dominated by the executive. In the following section, we will look in more detail at the practice of delegated powers, and the involvement of the EP in their control, following these changes introduced by the Lisbon Treaty.

A.  The European Parliament’s Control over Delegated Powers: Rights and Resources For the EP the achievement of a greater degree of involvement in the control of delegated powers was a long process and one that was highly charged with inter-institutional tensions. In 2005, when the agreement on the introduction of Article 5a into the 1999 Comitology Decision was reached, MEP Richard Corbett, the EP’s negotiator, is reported to have said: ‘This is a ceasefire, not yet a peace agreement.’30 The latter only came with the Treaty of Lisbon, and even then was not very stable.

30 See, eg, T Christiansen and M Dobbels, ‘Comitology and Delegated Acts after Lisbon: How the European Parliament Lost the Implementation Game’ (2012) 16 European Integration Online Papers (EIoP) 1, art 13.

76  Thomas Christiansen and Sabina Lange The EP was generally seen as the winner of the reforms introduced by the Treaty of Lisbon.31 While these additional new powers indeed constituted the achievement of long-held objectives for the EP, the increase in responsibility also implied significant new demands on the institution. Indeed, it required changes to internal procedures as well as additional resources in order to cope with the greater volume of non-legislative proposals that would now arrive at the doors of the EP on a regular basis. Perhaps even more importantly, it also required a greater degree of political will on the part of the elected members to devote time and attention to the scrutiny of delegated acts. In adaptation to the post-Lisbon situation, the EP introduced new services in its Secretariat, strengthened the existing services (‘horizontal services’ of the secretariat as well as the support provided for individual committees) and adapted its Rules of Procedure (for internal and inter-institutional work). This section reviews these adaptations in relation to the EP’s control of Commission’s delegated powers. However, such an analysis cannot be seen in isolation from the broader adaptation process that the EP underwent post-Lisbon, in particular with regard to its performance in the legislative process. One key aspect in the strategy to establish the EP as a mature institution, corresponding to its status as an equal co-legislator, was to build up greater internal expertise. In addition to an increase in personnel of the EP’s Secretariat more generally, a new European Parliamentary Research Service (EPRS) was set up in 2013, comprising both a Member’s Research Service and a separate Directorate for Impact Assessment and European Added Value. By providing MEPs with analyses and instant answers to complex policy questions and policy choices, the creation of the EPRS contributed to the aim of giving the EP greater credibility and autonomy in decision-making (and also more broadly in policy-making) by reducing its reliance on lobbyists. However, even if the EPRS provides added value and enhances the EP’s independence from organised interests, the hiring of some 50 new researchers – a sizeable number by the standards of the EP – must be seen in perspective vis-a-vis the size of the European Commission’s staff and the combined resources of national public administrations, which would be counted in the hundreds of thousands. The increase in the numbers of support staff of the political groups32 and the changed status of the assistants33 also improved the capacity of MEPs to deal with policy details contained in draft acts. While this improvement of the EP’s resources might be more visible with respect to its legislative work, it is also important with regard to the control of delegated powers. Post-Lisbon, the EP has demonstrated on various occasions that it has acquired the capacity to raise objections to the Commission’s delegated acts based on a high level of technical expertise.34 The newly acquired rights to scrutinise delegated acts also required changes in the EP’s committee secretariats and its horizontal services. More specifically, the major increase

31 ibid. 32 The political group staff rose by almost 20 per cent between 2008 and 2011 (from 809 to 1004; this figure does not include the parliamentary assistants). See, eg, C Salm, ‘Political Groups in the European Parliament since 1979: Key Facts and Figures’, EPRS Study, European Parliament (June 2019) at 41. 33 Council Regulation (EC) No 160/2009 of 23 February 2009 amending the Conditions of Employment of Other Servants of the European Communities [2009] OJ L55/1, incorporated, for the first time, the accredited parliamentary assistants into the body of rules governing the conditions of employment of EU officials. 34 See examples such as the second objection.

Executive–Legislative Relations and Delegated Powers in the European Union  77 in the EP Secretariat’s resources for dealing with delegated powers coincided with the introduction of the Regulatory Scrutiny Procedure in 2006.35 After 2006, the EP dedicated staff in all committee secretariats as well as in the Conciliation and Co-decision Unit (as it was then called)36 to support the legislative and scrutiny work of MEPs. These newly appointed officials formed an internal network and, from August 2007, starting meeting occasionally. Following the entry into force of the Lisbon Treaty, their meetings increased in frequency and became more regular. In the first two years, the meetings focused on the implementation of the EP’s own procedures regarding the scrutiny of delegated acts as well as on building up the capacities of the EP in inter-institutional negotiations. In the Parliament’s eighth term, the agenda of this informal network expanded to include the regular screening and monitoring of proposals, the sharing of information on Committee and Plenary work with regard to delegated acts, and the possible initiation of early warning procedures.37 In addition, the network also takes stock of ongoing developments and shares best practices, both regarding internal dealings with delegated acts and concerning cooperation with the Commission’s services. A second edition of a Handbook on Delegated and Implementing Acts was issued in mid-2018. Furthermore, members of the network also prepare notes on relevant cases and keep records of CJEU rulings related to Articles 290 and 291 TFEU. Time has also been invested in maintaining an intranet site with information and documents for staff to consult, as well as in organising seminars open to all EP staff in order to improve their understanding of delegated powers, and the EP’s management of its scrutiny of these powers across the institution. Legislation containing provisions for delegating powers to the Commission expanded across an increasing number of policy fields, demonstrating that the question of delegated and implementing acts was over time affecting a wider range of committees in the EP. While in 2010 just six EP Committees negotiated legislative acts with provisions to empower the Commission to adopt delegated acts, by 2014 this number had risen to 16 (out of a total of 20) standing committees (and 2 sub-committees). Considering that (sub-) committees such as those responsible for petitions (PETI), human rights (DROI) women’s rights and gender equality (FEMM) had no legislative acts with provisions for delegated acts, this means that all committees involved in legislative negotiations also dealt with the scrutiny of delegated acts.38 Ahead of the entry into force of the Lisbon Treaty, the EP introduced several new rules, including a rule to guide the EP in the scrutiny process.39 This new rule provided for the responsible committee to examine the delegated acts and submit a motion for resolution. The procedural details from the existing arrangements on the scrutiny of implementing measures applied.

35 See, eg, above n 32. 36 Previously called the ‘CODE Unit’, this unit was renamed the ‘Legislative Affairs Unit (LEGI)’ in 2018, reflecting the changes in legislative procedures which rendered conciliation almost obsolete. 37 The information here and in the following paragraphs was obtained from a research interview conducted with an official from the EP on 22 July 2019. 38 Analysis based on information received by the EP Legislative Affairs Unit for the period 2010–18. 39 In the November 2009 version of the EP’s RoP, this was introduced as Rule 87a. With later changes, it was renumbered as Rule 105 in 2016 and Rule 111 in 2019.

78  Thomas Christiansen and Sabina Lange The provisions for the adoption of delegated acts could only be adopted through new or revised legislative acts adopted after the Lisbon Treaty entered into force.40 Only later, once new legislative acts were operational, did the actual scrutiny process of delegated acts become an issue. The successive changes to the EP’s Rules of Procedure correspond to this sequence. After the first legislative negotiations, the EP introduced a new rule in June 201041 stating that EP negotiators ‘shall pay particular attention to the objectives, content, scope and duration of the delegation, and to the conditions to which it is subject’. The involvement of the EP committee responsible for the interpretation and application of EU law, namely the JURI committee, either at the request of the lead committee or on its own initiative, was also formalised in this revision. In late 2016, as part of a wider overhaul of the EP’s Rules of Procedure, this rule was extended to also apply to ‘conferral of implementing powers’. Rules governing the scrutiny process had already undergone a major revision in May 2012 and minor changes were also added in late 2016. Through these revisions, the EP extended the right to examine and propose an objection to a delegated act to associated and joint committees, and to party-political groups and groups of at least 40 members.42 This change thus ends the monopoly for the scrutiny by the responsible committee. This has not only widened the range of possible actors to propose objections, but has also opened up the possibility of reasons for such objections to be advanced on the basis of political preferences. The 2016 changes clarified a few smaller issues, but also extended the possibility to political groups and a low threshold of MEPs to object not just to the delegated acts, but also to implementing measures.43 Furthermore, the revised Rules of Procedure introduced a procedure for passing a motion for early non-objection to a proposed delegated act, allowing the decision-making process to be shortened in such cases. The EP’s procedures also clarified how a number of other elements of the Common Understanding (such as a procedure for revocation of the delegation) were to be implemented. In addition to that increase in dedicated staff, organisational adaptations and the revisions of its procedural rules, the EP also increased its capacity through inter-institutional negotiations. In particular, it was granted a standing invitation to nominate observers to attend meetings of expert groups discussing draft delegated acts. Previously, the EP had merely been in a position to express an interest in attending legislative expert groups, but not those discussing implementing and delegated acts. Following the 2016 agreement on IIABLM, EP experts, just like those from the General Secretariat of the Council, have a standing invitation to these expert groups. While such experts sent by the EP have no

40 The Commission pledged in 2009 to prepare the proposal to allow for the alignment of the ‘pre-Lisbon’ legislation with the ‘post-Lisbon’ system in the seventh legislative period of the EP (2009–14). The Commission submitted proposals in the summer of 2013, but negotiations were delayed, requiring the Commission to withdraw those proposals and submit new ones. Eventually the major new proposal, submitted in 2016, was split in 2019, with three institutions reaching an agreement on a smaller part of the proposal and leaving the rest for the ninth legislative period. 41 Later introduced as Rule 37a in May 2012, it was then renumbered as Rule 40 in 2016 and Rule 41 in 2019. 42 The number changed to the ‘low threshold’, ie, 5 per cent, with the 2016 changes to the EP RoP. 43 This is a result of the delayed alignment of the RPS measures from the pre-Lisbon legislation to the post-Lisbon system. The change in RoP, though late, was nevertheless justified with a number of RPS persistently higher than that of DA, but concentrated in a few committees.

Executive–Legislative Relations and Delegated Powers in the European Union  79 mandate to speak in the meetings, the information they receive through their participation in these meetings allows the EP to be given advance warning of the issues pertaining to the upcoming delegated act. Partly for the same reason, the EP also succeeded in the negotiations about the establishment of a new register of delegated acts, by the end of 2017, in order to ensure the timely receipt of information and documentation, and thus securing time to be able to organise and conduct the scrutiny. A more consistent approach to impact assessments conducted by the Commission and the extension of the use of impact assessments for delegated and implementing acts have also helped the EP in addressing its information and capabilities gap vis-a-vis the executive institutions. This discussion demonstrates how the EP adapted its own procedures and increased its resources in order to exercise its new powers over the delegated acts more effectively. While the discussion so far has predominantly focused on the manner in which the EP formally adapted to the changing landscape of delegated powers over the last two decades, it is also important to recognise how its dealings with the Commission have changed in practice. As in other respects of inter-institutional relations in the EU, the issue is not just a matter of formal powers, but also one of actual practice. In the next section, we will therefore look more closely at the changing practice in the EP during this time, in order to then be able to draw conclusions about the effect that those changes in both the formal arrangements and actual practices have had on the legislative–executive relations in this domain in the EU.

III.  The Practice of Legislative Control of the Commission’s Delegated Powers Post-Lisbon We explained above how the challenge for the EP has not just been to ensure an effective control of the Commission’s delegated powers, but also to negotiate the actual delegation in legislative acts. In drafting legislative acts, the Commission proposes, where appropriate, the nature of any delegations and it also actively participates in subsequent negotiations during the passage of its proposals.44 However, the final decision on the legislative act being adopted is taken by the legislator, which, for acts falling under the ordinary legislative procedure, requires agreement between the EP and the Council – two institutions that usually have opposing preferences regarding the type of delegation to be adopted. This is one reason why legislative negotiations in the post-Lisbon era have often proven to be difficult and lengthy.45 The control of the Commission’s execution of its delegated powers is a matter of (almost) daily routine in the EU occurring against the backdrop of this wider inter-institutional tension. Table 4.1 above provides the numbers of delegated and implementing acts as well as measures submitted/adopted under the RPS procedure by the Commission on an annual basis. When compared to the annual average of legislative acts – roughly 80 a year in the eighth legislative period between 2014 and 2019 – it becomes apparent that the sheer numbers constitutes a challenge for effective (parliamentary) control. 44 Joint Declaration on practical arrangements for the Codecision procedure (Article 251 of the EC Treaty) [2007] OJ C145/5, point 13. 45 See above, n 30.

80  Thomas Christiansen and Sabina Lange As the figures in Table 4.1 above show, implementing acts are by far the most numerous of these measures, with an average of well above 1,500 per year. In these cases, the legislator may pass a non-binding resolution calling on the Commission to withdraw a draft implementing act if it deems that it exceeds the powers given to the Commission, and to present a new draft. In the post-Lisbon period until the end of the eighth legislature in 2019, the EP passed 43 resolutions asking for draft implementing acts, all based on a handful of basic acts, to be withdrawn.46 The Council has not yet acted on the basis of this right. With one exception, all resolutions based on this right were put forward by the EP Committee on Environment, Public Health and Food Safety (ENVI) and they were all widely supported by the EP. However, the EP in its resolutions did not condemn the Commission for exceeding its powers in drawing up the implementing act. Instead, the EP has consistently used this right to condemn the existing procedures as they are laid down in the basic acts on which the implementing acts in question are based, often by using arguments based on scientific grounds, and to call on the Commission to present a new legislative proposal. In one case, however, the EP felt that the Commission indeed exceeded its powers. Rather than adopting a non-binding resolution, it used its general right of standing in front of the CJEU. In the EURES case,47 the Court did not side with the EP, but concluded that the Commission Implementing Decision48 was in line with the ‘essential general aims’ provided by the basic act and that its measures were necessary or appropriate for the implementation of the basic act ‘without supplementing or amending it’.49 Subsequently, the EP’s guidance from the Rules of Procedure, which calls upon the EP negotiators to pay utmost attention when framing provisions for delegated acts, was extended to also cover the formulation of the ‘conferral of implementing powers’.50 The analysis of the EP’s use of its – very limited – powers in scrutinising draft implementing acts demonstrates that it uses these largely to deal with a single issue and for agenda-setting purposes, and not necessarily as a form of control over the Commission’s delegated power. However, the adaptation of the rules of procedure following the EURES judgment is not only symbolic, but should also be seen as part of capacity building in legislative negotiations. Yet, it is with respect of the delegated acts that the EP and the Council hold considerable power post-Lisbon. The EP acting by absolute majority and the Council by super-qualified majority can object to the Commission’s delegated act on any grounds. In the Common Understanding, the three institutions agreed on a framework for the period of objections, including the possibility for either of the legislative institutions to announce the extension of the objection period in line with the conditions set, case by case, in the basic act. Table 4.3 shows numbers of objected delegated acts by the EP and by the Council in comparison to all adopted DA by the Commission. A rough comparison suggests that the trend of vetoing the RPS, also presented in Table 4.3, roughly continued after the 46 Numbers are based on the author’s own count following an analysis of plenary agendas in the stated time period. 47 Case C-65/13 European Commission v European Parliament [2014]. 48 Commission Implementing Decision 2012/733/EU of 26 November 2012 implementing Regulation (EU) No 492/2011 of the European Parliament and of the Council as regards the clearance of vacancies and applications for employment and the re-establishment of EURES [2012] OJ L328/21. 49 European Commission v European Parliament (n 47) paras 44–46. 50 See Rule 40 of the Rules of Procedure of the European Parliament (2019).

Executive–Legislative Relations and Delegated Powers in the European Union  81 Table 4.3  Vetoes to RPS measures (2007–September 2019) and objections to DA (2010–August 2019) by the Council and the EP 2007–September 2019

Total RPS

Vetoes by Council

Vetoes by the EP

1,498

12

10 (of which 1 in 2019)

2010–August 2019

Total DA

Objections by the Council

Objections by the EP

830

5

10

(of which 102 in 2019)

introduction of the delegated acts. However, the number of acts that were objected to does not show the entire picture of the EP’s (or the Council’s) scrutiny-related activities. The data show that 10 delegated acts were objected to by the EP and five delegated acts by the Council. However, a closer look at the EP practices51 shows that 28 resolutions were tabled for objections in the same period. In three cases they were withdrawn, whereas the others did not reach the required majority to object to the Commission’s delegated act in question. We can also observe that attention to delegated acts has spread across the committees and the political groups, as 10 standing committees have placed a resolution to object to the delegated act to the plenary agenda and so did all but one political group.52 Nevertheless, the political groups were statistically less successful in persuading the majority of MEPs to vote to object to a delegated act. Only one out of 10 objected delegated acts was put forward by a political group, whereas the political groups (and in one case a sufficient number of MEPs) proposed objections to delegated acts that did not command a sufficient majority in the EP in 11 cases. In the case of the committees proposing objections, in only four cases did the majority of the plenary not agree with the objection proposed by a committee. It is worth noting that in only 16 further cases did an EP committee, when voting on the objection to a delegated act, not achieve the required majority to advance to the plenary. Slightly more widespread is the EP’s use of the possibility to extend the scrutiny period. In 85 cases, the EP asked to extend the scrutiny period53 and often used the extra time to discuss with the Commission the merits of its delegated act. In fact, in the three cases in which the resolutions were withdrawn from the plenary agenda, this occurred after negotiations with the Commission representatives. Such contacts between Commission officials and the MEPs or the committees increased in particular during the Juncker Commission and following the agreement on the 2016 IIABLM. The participation of the EP’s representatives

51 Numbers are the authors’ own calculations. 52 The following standing committees had at least, alone or in conjunction with another committee, once brought a resolution to object to a delegated act onto the agenda of the plenary: AGRI, BUDG, CONT, ECON, ENVI, IMCO, INTA, LIBE, TRAN, PECH. Taking the seventh and the eighth legislative terms into account, the European People’s Party is the only political group not to have proposed an objection to a delegated act based on the rule that allows a low threshold or a political group to do so. 53 Information received from the Legislative Affairs Unit of the EP’s Secretariat, the number refers to the times until the last plenary of the eighth legislative period in April 2019.

82  Thomas Christiansen and Sabina Lange in the expert groups preparing delegated acts, which was established in this agreement, may act as an ‘early warning mechanism’ in this respect, with Commission officials being regularly invited to the meetings in the EP ‘in order to have a further exchange of views on the preparation of a delegated act’.54 In fact, it could be argued that the very lack of formal objections might be a sign of effective scrutiny: it is through the participation in the expert groups and through contacts with the Commission in the preparatory stage, as well as due to the availability of information provided through the Register of delegated acts, that potentially problematic issues are addressed and often clarified.55

IV.  Concluding Remarks: Recalibrating Executive–Legislative Relations in the Area of Delegated Powers? This chapter has provided a – necessarily abbreviated – account of the way in which the evolution of delegated powers in the EU has been impacted by, and has in turn impacted, the balance between executive and legislative actors. As we have shown, the EP has over time encroached into an area of EU rule-making that in the past had been the exclusive domain of European and national executives. This process of parliamentarisation of the scrutiny of delegated powers, coming in the wake of the wider process of the EP becoming a genuine co-legislator, has helped to rebalance executive–legislative relations in the EU. In conclusion, four observations about the wider impact of this development can be made. First, the driving force from the perspective of the EP in this recalibration process has been a set of normative concerns about the transparency, accountability and democratic legitimacy of non-legislative rule-making in the EU. Parliament’s demands for, initially, more information about the comitology system and, subsequently, a meaningful involvement in the scrutiny of draft implementing and delegated acts led to changes in both the Treaty and the legislative arrangements in this domain. Yet, the achievement of these normative goals has also led to a much greater complexity in decision-making in this area and the potential for greater politicisation of individual acts. The EP’s aspiration for greater influence has been a source of inter-institutional tensions for much of the past three decades, albeit without leading to fundamental problems in managing delegated powers.56 Second, the ‘arrival’ of the EP in the system of control over delegated powers also increased, somewhat paradoxically, the role of the Council. Where it previously only held a marginal role – in practice hardly ever used – as final arbiter in cases where the Commission failed to achieve the required majorities in comitology committees, since the Lisbon Treaty, it has engaged in the regular scrutiny of delegated acts. This is of course the consequence of

54 European Parliament, Handbook on Delegated and Implementing Acts, July 2018, 39. 55 The argument was raised by an official working for the EP, participating in a workshop held in Brussels on 28 May 2019 in which a draft of this chapter was presented. 56 It could be argued that disagreements among Member States about the manner in which certain legislation is implemented has posed a greater risk to the working of the system. See T Christiansen and J Polak, ‘Comitology between Political Decision-Making and Technocratic Governance: Regulating GMOs in the European Union’ (2009) 1 Eipascope 5.

Executive–Legislative Relations and Delegated Powers in the European Union  83 the Council being regarded, quite rightly, as a legislative institution in the EU, requiring it to be involved in the process as an equal to the EP. Yet, the nature of the Council as having both a legislative role and an executive identity is visible in the manner in which it has also been involved as a representative of Member State administrations. Third, our analysis of the growing involvement of the EP in the scrutiny of delegated powers has also demonstrated the degree to which the (im)balance between the executive and the legislature in this domain is not only about the formal powers, but also about the institutional capacity and the political will to make use of these powers. The new powers that the EP received with the Lisbon Treaty implied not only greater parliamentary influence and democratic legitimacy, but also increasing responsibilities and, simply put, more work for the institution. Despite a significant increase in the resources that the EP can now devote to its new role, the limited uptake in challenges to proposed delegated acts is also a sign of the selective application of the EP’s new powers. This, it can be argued, speaks to a wider point about the (im)balance in executive–legislative relations, namely the importance of considering not only how formal powers are (re-)arranged, but also how (un)evenly administrative, financial and informational resources are allocated across the different branches. Finally, we have observed that the recalibration of executive–legislative relations in the area of delegated powers remains a ‘work in progress’. As our historical overview has shown, the parliamentarisation of this domain has been a long-term process, accompanied by frequent struggles and inter-institutional tensions. Contrary to the intentions, the new arrangements in the Lisbon Treaty concerning the relationship between the EP, the Council and the Commission did not settle the matter conclusively. Indeed, it led to new tensions about the (lack of) involvement of the Member States’ representatives, the Council and the EP in informal expert groups set up to prepare delegated acts, about the choice between the use of implementing acts and delegated acts in the legislative acts, and about the alignment of legacy acts to the post-Lisbon procedures. The fact that these matters have remained somewhat unresolved despite the promise of a ‘settlement’ in the Lisbon Treaty is demonstrated by the need for subsequent legislation, cases in front of the CJEU, inter-institutional agreements and challenging inter-institutional negotiations over the provisions for granting the Commission powers to adopt delegated and implementing acts. It is for these reasons that an overall conclusion to our study of executive–legislative relations in the area of delegated powers in the EU has to capture the nuance of this development: on the one hand, it should be recognised that these relations have become much more balanced over time, with the EP having achieved formal equality with the Council, making it an influential actor in the system; on the other hand, we have seen that this process of recalibration remains an ongoing process, with disagreements over the implementation of the new provisions. In other words, and in response to the question contained in the title of this chapter, we have observed that a recalibration of executive–legislative relations has indeed occurred, but also that it remains – much like democracy itself – an ongoing process. Seen in the wider context of the trajectory of the EP’s empowerment in the EU, the case of delegated powers provides further evidence of the recalibration of executive–legislative relations in the EU. As we have seen, the picture is not clear-cut; there have been starts and stops, as well as continuous tensions, and also serious questions about the capacity and willingness of the EP to actually carry out the scrutiny functions it fought so hard to acquire. Involving the EP has improved the transparency of the system, but has also added

84  Thomas Christiansen and Sabina Lange further complexity, uncertainty and possibilities for inefficiencies: timelines for individual decisions have increased, the potential for objections has increased, and the reasons for such objections are much less predictable in a more politicised environment. In many ways, the domain of delegated acts can be seen as a microcosm of the wider evolution of the EU decision-making system. The arrival of the EP as a genuine veto-player in the system increases the chances that individual decisions are becoming politicised and the outcome of the decision-making process are becoming less predictable as a result. This might be seen as a disadvantage by actors having a stake in the outcome of particular decisions, but on the other hand, it is a natural and – many would argue – essential aspect of a system that is being democratised. Leaving important decisions affecting the lives of citizens purely to technocratic institutions working behind closed doors is no option in what is widely regarded at the post-functionalist phase of European integration.57 Ultimately, in an EU that can no longer rely on the ‘permissive consensus’ of the electorate, not involving representative institutions in the scrutiny of the delegated powers held by the executive poses an even greater risk in the long run. In that regard, the recalibration of executive–legislative relations in the area of delegated powers has not only worked well, but was actually essential in order to maintain the legitimate functioning of the system.

57 L Hooghe and G Marks. ‘A Postfunctionalist Theory of European Integration: From Permissive Consensus to Constraining Dissensus’ (2009) 39 British Journal of Political Science 1.

part ii Executive–Legislative (Im)balance within Member States

5 The Implementation of EU Law in Member States and its Impact on the Relationship between Parliaments and Governments DIANE FROMAGE

I. Introduction Directives arguably represent a marginal percentage of the total number of European Union (EU) norms (1,900 directives vs 11,500 regulations form the acquis), and the EU approves 80 directives a year on average, as opposed to the 1,200 regulations adopted annually.1 Yet, the transposition of directives as well as the implementation of regulations raise important questions in relation to the impact of the European integration process on the institutional balance within Member States, ie, in terms of the relationship between parliaments and governments, because it may lead (and indeed has led, as will be explained in this chapter) to the marginalisation of parliaments to the benefits of governments.2 This question of the implementation of EU law by Member States has recently attracted the attention of the national institutions themselves,3 and a bi-annual report of the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC) addressed the issue of Member State parliaments’ role in monitoring and

1 M Ballesteros, ‘Monitoring the Implementation of EU Law: Tools and Challenges’ (2017), study prepared for the EP PETI Committee, PE 596 799, 31. 2 The transposition of directives may also entail important restrictions for constitutional courts in the exercise of their control of constitutionality of the transposing norms since their capacities are limited. For a comparative perspective on France and Germany, see FX Millet, Le contrôle de constitutionnalité des lois de transposition. Etude de droit comparé France-Allemagne (Paris, L’Harmattan, 2011). 3 See, among others, Belgian Senate, ‘Rapport d’information sur la transposition du droit de l’Union européenne en droit belge’ (2015); French Conseil d’Etat, ‘Anticiper pour mieux transposer’ (2015); French Sénat, Note de législation compare, ‘La surtransposition des directives européennes’ (2017). In October 2018, the Bulgarian National Assembly also submitted a request to the European Centre for Parliamentary Research and Documentation enquiring about national parliaments’ role in transposing and implementing EU law; European Parliament, Spotlight on Parliaments in Europe no 24 (2019), http://www.epgencms.europarl.europa.eu/cmsdata/upload/71bd9235-617 2-4c5a-9ed1-7e4ad9521d02/No._24_Monitoring_of_the_transposition_of_directives_and_the_implementing_ measures_of_EU_regulations.pdf.

88  Diane Fromage implementing EU law in 2017 as well.4 In addition, the European Parliament (EP) hosted an Interparliamentary Committee Meeting – ie, a committee meeting to which members of national parliaments are invited to attend – on this issue in November 2018.5 In parallel to these initiatives, the European Commission has expressed its determination ‘to step up [the] enforcement of EU law for the benefit of citizens, consumers and businesses’,6 although it intends to focus on the most important issues.7 Besides, most new infringement procedures against Member States are launched by the European Commission on the grounds of the late transposition of directives, and most infringement cases generally relate to the late or incorrect transposition of directives.8 The issues of transposition and implementation are thus particularly topical 10 years after the entry into force of the Lisbon Treaty. Even if parliaments have now generally become more active in EU affairs, transposition is mainly the responsibility of Member State governments and it is therefore particularly likely to upset the balance of powers within Member States, especially because the implementation of EU law takes place within a strict framework. Even in the case of the directives (which solely bind Member States in terms of the objective to be reached and not as regards the means to obtain them),9 Member States are still acting within the limits defined by the directive in question and will be fined if they fail to transpose it before a specific deadline or in an appropriate manner. At the same time, the national institutions involved in the transposition (and implementation) procedures may not necessarily have been involved in the preparation phase of the directives at stake or may not have been fully aware of the future consequences for the national institutional order at that time. This increases the difficulty of determining who should bear responsibility in the event that belated or wrongful transposition occurs. In addition, the question of ‘gold plating’, ie, implementation measures that go beyond what is required by the directive, thereby effectively hindering the effects intended by the directive, is an issue to which Member States must pay attention.10 The Commission is committed to reducing this practice, which, in the Single Market, may harm trade and small businesses in particular.

4 COSAC, ‘Twenty-Seventh Bi-annual Report: Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny’ (2017). 5 Interparliamentary Committee Meeting on ‘Empowering Parliaments and Enforcing Citizens’ Rights in the Implementation and Application of Union Law’ jointly organised by the Legal Affairs Committee and the Committee on Petitions on 27 November 2018. 6 European Commission, press release, ‘EU Law: Commission Steps up Enforcement of EU Law for the Benefit of Citizens, Consumers and Businesses’ COM (13 December 2016); and in more detail, European Commission, ‘EU Law: Better Results through Better Application’ (Communication) COM (2017 18/02). 7 European Commission, ‘Annual Report on National Implementation of EU Law 2016’ COM (2017) 4. 8 European Commission, ‘Monitoring the Application of European Union Law. 2018 Annual Report, Part I: General Statistical Overview’ (2019) 18 and 20, ec.europa.eu/info/sites/info/files/report-2018-commissionstaff-working-document-monitoring-application-eu-law-general-statistical-overview-part1_0.pdf. 9 Article 288 TFEU. 10 This issue has recently attracted the attention of the French Senate, which prepared a comparative study of the situation in several Member States. French Senate, ‘La surtransposition des directives européennes’ (2017). Interestingly, shortly thereafter, a law to avoid gold-plating in laws already in force was proposed by the French government (‘Projet de loi portant suppression de sur-transpositions de directives européennes en droit français’, 3 October 2018). It should also be noted that certain Member States have made clear generally applicable choices in this regard. For instance, in the UK, gold-plating was, as a rule, to be avoided unless there are good reasons for it so that UK businesses are not put at a competitive disadvantage. See UK Government, ‘Transposition Guide: How to Implement European Directives Effectively’, April 2013, 7 f.

The Implementation of EU Law in Member States and its Impact  89 Against this background, this chapter first aims to shed light on the (most often) unknown specificities of implementation and transposition procedures in order to examine the impact they have (and have had) on the balance of powers within Member States.11 It specifically analyses the imbalances which have arisen between governments and parliaments, the rationale behind them and whether other mechanisms – for instance, in the form of active involvement in the pre-legislative phase and during the legislative procedure – may compensate for the existing limited parliamentary involvement. In this sense, it complements the empirical analysis proposed by Robert Zbíral and Jan Grinc in Chapter 6 of this volume. These questions will be answered by first examining the context in which transposition takes place post-Lisbon (section II) before the question as to how parliaments are involved in the implementation and transposition procedures is examined (section III). Second, the repartition of the responsibilities in the event of belated or wrongful transposition is analysed (section IV). The following section is devoted to checking whether other involvement mechanisms during the pre-legislative phase and during the EU legislative procedure itself are sufficient to compensate for the imbalances that exist during the transposition phase (section V). The concluding remarks present an assessment of the evolution so far (section VI).

II.  Transposition in the Post-Lisbon Era: More Constraints for Member States? As stated in Article 288 of the Treaty on the Functioning of the European Union (TFEU), ‘[a] directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’. However, Member States’ duties are more complex than it might seem at first sight, and this duty of transposition has represented a challenge for Member States which failed to fulfil it properly or in due time; these repeated delays and wrongful transpositions have, in fact, led to the Commission’s strict(er) application of the rules referred to in section I above. As will be illustrated here, transposition is indeed a difficult exercise for Member States, in particular because for several decades they – or a large majority of them – have failed to differentiate the European integration process from the ordinary conduct of international matters.12 Consequently, they did not adapt their institutional frameworks adequately either 11 It should be noted that whilst legal scholarship on this matter is scarce, political scientists have analysed it extensively. See, eg, F Dunia, ‘Explaining Legal Implementation in the European Union’ (1997) 25(2) International Journal of the Sociology of Law 155; G Falkner, M Hartlapp and O Treib, ‘Worlds of Compliance: Why Leading Approaches to EU Implementation are Only “Sometimes-True Theories”’ (2006) EUI RCAS Working Paper No 2006/22; G Falkner and O Treib, ‘Three Worlds of Compliance or Four? The EU-15 Compared to New Member States’ (2008) 46(2) Journal of Common Market Studies 293; and A Héritier et al (eds), Differential Europe: The European Union Impact on National Policymaking (Lanham, MD, Rowman & Littlefield, 2001). 12 On EU affairs being considered as belonging to international affairs in Germany, see M Obrecht, Niedergang der Parlamente? Transnationale Politik im deutschen Bundestag und der Assemblée Nationale (Würzburg, Ergon 2006) 147. On Italy and the consequent lack of interest on the side of MPs, see A Esposito, ‘Il Trattato di Lisbona e il Nuovo Ruolo Costituzionale dei Parlamenti Nazionali: Le Prospettive per il Parlamento Italiano’ (2009) LI(4) Ressegna parlamentare 1119, 1158. On Spain, see B Villa Ramos, ‘El Tratado de Lisboa y las Modificaciones en la Organización Parlamentaria Europea. La implantación del Mecanismo de Alerta Temprana en el complejo Sistema Parlamentario español’ (2010) 22 Revista parlamentaria de la Asamblea de Madrid 281, 299.

90  Diane Fromage to allow their parliaments to participate fully or to transpose EU directives properly and in a timely manner – ie, they did not sufficiently anticipate this obligation. However, this situation improved over time, in part because of an evolution of the EU-related political culture, but also in part because of the financial sanctions imposed on the Member States by the European Court of Justice. The European Commission defined an objective of 0.5 per cent of non-transposition for Single Market directives, where the European Council pursues the less ambitious objective of 1 per cent.13 To put these figures into context, the data referring to December 2015 show that the transposition deficit then was at 0.7 per cent,14 and it has been oscillating between 0.5 per cent and 0.7 per cent since 2012.15 When the Single Market Scoreboard was first introduced in 1997, the deficit was 6.3 per cent. It decreased steadily until it went below the 1 per cent bar in 2008 (this objective had been set by the European Council two years before in 2006). It increased again in 2016, but has since gone back to its previous level.16 A similar tendency can be observed more generally, ie, not only in relation to Single Market directives, as delayed transposition became more numerous in 2016 again, after some years of decrease.17 The number of infringement procedures also rose in 2016, though this decreased in 2017 and 2018.18 Therefore, we observe a general tendency towards low(er) levels of transposition deficit and delays. The definition of those objectives by the European Council and the Commission was accompanied by the strengthening of the infringement procedure before the Court of Justice of the European Union (CJEU) following the entry into force of the Lisbon Treaty. Until then, under Article 228 of the Treaty of the European Communities (TEC), financial sanctions were only imposed after Member States failed to comply with a Court decision establishing their failure to fulfil their obligations. By contrast, within the framework of an infringement procedure as per Article 258 TFEU, Article 260 TFEU now differentiates between Member States’ failure to transpose EU directives adequately (Article 260(2) TFEU) and their failure to notify the Commission of adopted transposition measures (Article 260(3) TFEU). The procedure defined in Article 260(3) TFEU is much stricter on the Member States in the latter instance. First, the new paragraph 3 specifically addresses the absence of notification of the transposition of directives and, second, it foresees the definition of the amount of the financial sanction already in the Court’s judgment and no longer after a Member State has failed to comply with the Court’s judgment, as was previously the case (and as is still the case in matters of wrongful transposition as per Article 260(2) TFEU).19 Article 260(3) TFEU indeed reads: When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing 13 French Conseil d’Etat (n 3) 7. 14 European Commission, ‘Single Market Scoreboard, Transposition’ COM (5/2015–12/2015) 2, ec.europa.eu/ internal_market/scoreboard/_docs/2016/transposition/2016-scoreboard_transposition_en.pdf. 15 European Commission, ‘Single Market Scoreboards 2012 to 2015’, http://ec.europa.eu/internal_market/ scoreboard/_archives/2013/07/performance_by_governance_tool/transposition/index_en.htm. 16 The Commission explains this temporary raise by the fact that an usually high number of directives were approved and thus had to be transposed just before the corresponding data were collected. See European Commission, ‘Single Market Scoreboard’ COM (12/2017–12/2018), 15, ec.europa.eu/internal_market/ scoreboard/_docs/2019/performance_by_governance_tool/transposition_en.pdf. 17 Ballesteros (n 1) 9. 18 European Commission (n 8). 19 There has only been one case on this basis so far: Case C-543/17 Commission v Belgium ECLI:EU:C:2019:573.

The Implementation of EU Law in Member States and its Impact  91 a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment.

Within the framework of this procedure, the Commission originally announced in 2011 that it was not its intention to propose lump sums in addition to penalty payments, although it reserved itself the right to re-assess its position on the basis of Member States’ attitudes.20 And so it did a few years later, when it decided that infringement proceedings before the Court will no longer be dismissed as soon as the Member State in question has fulfilled its obligations after Poland complied with its obligations when the procedure before the Court was already very far advanced.21 The proposal made by the Commission to request the Court to adjudicate a lump sum, in addition to the penalty payment, allows the Court to request Member States to pay these lump sums for the period of their delay in notifying the Commission of their transposition of a given directive,22 while they must also pay a penalty until they comply with the Court’s judgment by adopting the necessary measures. This change should have welcome dissuasive effects on the Member States, since they will no longer be able to remain free of sanctions for their failure to notify the Commission of the adoption of transposition measures by adopting them while the infringement procedure is pending before the Court; the prospect of financial sanctions regardless of any corrective actions taken after the infringement procedure has started should encourage Member States to be even more respectful of their duties. The Commission’s increased firmness in ensuring the timely transposition of EU law is further visible in its decision to resort to fewer EU Pilot procedures, unless it is useful in a specific case.23 EU Pilots indeed offer a possibility to Member States in potential incompliance with EU law to enter into an informal dialogue with the Commission before an infringement procedure is launched.24 Beyond this change in the Commission’s attitude, the stricter approach towards Member States for a failure to notify (ie, for a failure to transpose or partial transposition only) the Commission introduced by the Lisbon Treaty appears to be generally justified. Whereas wrongful transposition may be the result of an honest and genuine attempt to respect their obligations on the side of the Member States, an absence of notification or of transposition instead points towards a failure on their side. However, despite these stricter rules, Member States continue to fail to inform the Commission of the transposition measures they have adopted (or they increasingly fail to transpose at all); the number of open infringement

20 European Commission, ‘Implementation of Article 260(3) of the Treaty’ (Communication) (2011/C 12/01) 4. 21 European Commission, ‘Monitoring the Application of European Union Law. 2015 Annual Report’, COM (2016) 463 final, 30. 22 European Commission, ‘EU Law: Better Results through Better Application’ (Communication) (2017/C 18/02) 15–16. 23 European Commission (n 7) 20. 24 ‘EU Pilot’, ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/eu_pilot/index_en.htm.

92  Diane Fromage proceedings for late transposition remained fairly stable between 2014 and 2017 (it even increased significantly in 2016) and only slightly decreased in 2018.25 At the same time, in introducing the new ‘delegated acts’, the Lisbon Treaty has complicated Member States’ transposition duty since the delegated acts adopted by the Commission may also take the form of directives.26 This new possibility to adopt ‘delegated acts’ combined with the already-existing ‘implementing acts’ imply that Member States may be confronted with a situation in which they have to transpose both a directive and the directive(s) subsequently adopted as delegated or implementing acts. This complicates Member States’ tasks because they may need to wait until this second type of act is adopted in order to start preparing their transposition with a complete overview of what needs to be done, instead of starting the procedure and finding that they need to take other elements into account. Furthermore, whereas Member States are involved in the design of implementing acts, it may be more difficult for them to anticipate the content of delegated acts. This is particularly true of Member States such as France, where a strict distinction between the legal and the regulatory domains is made and where two slots in the already busy legislative agenda may therefore need to be found if the transposition of the several norms cannot take place in the same national law. This also means that if a Member State decides to wait until the delegated acts have been adopted, the margin it will have to schedule the adoption of the law of transposition in parliament will be particularly limited. Beyond all of this, it appears that a consensus exists between EU and Member State officials in considering that ‘the provisions of EU law are not clear, which is mostly due to the compromises of the decision making procedure and their complex, technical, subject matter’.27 This vagueness in turn makes timely transposition particularly difficult, just as some differences of interpretations between national and EU authorities do too.28 This new and more stringent context could and should arguably invite Member States to (even) better anticipate the transposition process and more generally to help in the pursuit of more efficient transposition procedures, although potentially to the detriment of parliaments, as will be seen below.

III.  Parliaments in National Transposition Procedures Parliaments may be set aside to the benefit of their governments during the transposition and implementation procedures. Such limited parliamentary involvement may result from a lack of active participation as legislation goes through parliament or from the choice to transpose following secondary or special procedures that do not require as much parliamentary involvement as ordinary legislative procedures (but will have, in certain cases, been preceded by an express delegation).29 25 European Commission (n 8). 26 French Conseil d’Etat (n 3) 14–15. 27 Ballesteros (n 1) 37. 28 ibid. 29 LK Perez, ‘National Parliamentary Involvement in EU Policy-Making: Questions, Resolutions, and Transposition’, dissertation, University of Pittsburgh, 2016, 55. Beyond this, the possibility exists for transposition to take place in the form of collective agreements between social partners. See D Batta, ‘Comparative Study on the Transposition of EC Law in the Member States’, European Parliament Committee on Legal Affairs (2007), https:// www.europarl.europa.eu/RegData/etudes/etudes/join/2007/378294/IPOL-JURI_ET(2007)378294_EN.pdf, 17.

The Implementation of EU Law in Member States and its Impact  93 As stated above, most transposition measures take the form of secondary legislation, ie, decrees and regulations.30 This results in parliaments being involved in transposing 14–17 per cent of EU legislation, which means in practice that parliaments and their committees are not as intensively involved as they would be in the event of a recourse to primary legislation. Whether this situation is the result of national constitutional features (ie, if there exists a clear distinction between the legal and the regulatory domains) or whether it is linked to (express) delegation by parliament will be examined here. An assessment as to whether this limited parliamentary involvement rightfully exists is also given. The different procedures in place in the Member States will be examined further below, but it should in any case be borne in mind that the choice of the instrument used to transpose EU directives most often rests on the minister in charge31 since, as is logical, governments are in charge of transposition.32 Only in very few cases will parliaments take the initiative to make a legislative proposal to transpose EU legislation, although perhaps they should in the event that the government does not take the appropriate measures in time to avoid sanctions. The government’s choice to use one legal instrument or another is determined by pre-existing legislation too – ie, where transposition powers have been delegated to the government, they rest with it in the event of later, additional, transposition duties. The balance of powers between the executive and the legislative therefore appears to be leaning strongly in favour of the executive, which may be led to decide on the level of involvement of parliaments. In addition, parliaments are only marginally kept up to date in this field. An EP study addressing the transposition of EC law prepared in 2007 had come to this conclusion then, but it appears that more than 10 years later, this statement still holds.33 For instance, in Belgium, Parliament is informed once a year via a report presented by the Foreign Affairs Minister,34 although the State Secretary for European Affairs regularly attends a hearing before the EU Affairs Committee. Other parliaments, like that of Estonia35 or the German Bundestag, are informed several times per year. A plan may also be adopted in advance by parliament, as is the case in Croatia.36 Beyond this limited follow-up of transposition and implementation procedures, a COSAC survey performed in 2017 showed that a very large majority of national parliaments do not carry out any evaluation of existing EU legislation either.37 Interestingly, most national parliaments (22 out of 34 responding parliaments) were neutral in their assessment of the Commission’s evaluation reports on the implementation of EU law as sufficient tools for national parliaments to scrutinise their national governments on the implementation of EU law. A similar absence of opinion exists in relation to the level of detail on the effects of EU law in each and every Member State in the Commission’s evaluation reports. While some (14) parliaments neither agreed nor disagreed with a possible extension of their access 30 The information on this issue is derived from Perez (n 29) 145. 31 ibid 145. 32 Batta (n 29). 33 European Parliament (n 3) 2. 34 Belgian Senate (n 3) 32. 35 Estonian Parliament, ‘Guidelines for Procedure for Handling European Union Affairs’, 13–14, www.riigikantselei.ee/sites/default/files/content-editors/Failid/guidelines_for_procedure_for_handling_european_union_affairs.pdf. 36 Croatian Parliament, ‘Harmonization of Legislation’, www.sabor.hr/en/european-affairs/harmonizationlegislation. 37 Data extracted from COSAC, 27th Bi-annual Report, 2017, 14 f.

94  Diane Fromage Table 5.1  Existing models of transposition in the Member States Choice 1: scope

Choice 2: instrument38

1. Individual transposition

1. Legislative act

2. Global transposition

Choice 3: procedure Ordinary Accelerated

2. Executive act

Following delegation or not Single or blanket delegation

3. Mixture

to information other than the Commission’s implementation reports, 19 of them (strongly) agreed that this would be a positive development, while only one disagreed. Perhaps this absence of opinion of parliaments on their access to the Commission’s implementation reports is linked to the general limited parliamentary involvement in this domain in any case, although this also points to the fact that parliaments could potentially be willing to play a more active role if the necessary information were easier for them to access. At present, the most commonly available tools for parliamentary monitoring or scrutiny of the implementation of EU law by governments are: the possibility for Members of Parliament (MPs) to raise this question in committees (32 out of 35 responding parliaments) and during plenary debates (27 parliaments). By contrast, the possibility for MPs to compile specific reports on their own initiative on this issue is much more limited, as this potential only exists in five parliaments. As argued earlier, given that wrongful or belated transposition entails the use of state budgets to pay fines, the involvement of parliaments in this field is of the utmost importance. As indicated in Table 5.1 above, Member States are mostly led to make a series of three choices when fulfilling their transposition duties. They will first have to decide whether they implement EU directives individually or whether they do so globally. The technique used in Italy following which content-unrelated directives are globally transposed by one annual law39 appears to be the exception rather than the rule. In fact, only Italy and Greece commonly transpose unrelated directives in the same legal norm. Other Member States may well transpose several directives using one legal norm or during the same procedure entailing the adoption of several norms, but this procedure is limited to directives whose content is related. Second, the instrument to be used needs to be defined: the choice here is between legislative or executive acts, or a mixture of both. This choice is above all guided by the constitutional framework in place in each of the Member States. The fact that governments will need a majority in order to pass the required legislation may also incite them to try and avoid parliament’s participation in a quest for more efficiency. MPs may seek to exercise 38 This situation is further complicated by the fact that in certain Member States, social partners may also be able to transpose directives by adopting collective agreements as in Belgium, Denmark and Sweden. See Batta (n 29) 10. 39 Articles 29 f of Law 234/2012 on Italy’s participation in the EU. For more on the Italian practice, see R Ibrido, ‘Formulating and Implementing EU Law and Policies: “Ascending” and “Descending” Phases and Beyond’ in N Lupo and G Piccirilli (eds), The Italian Parliament in the European Union (Oxford, Hart Publishing, 2017) 58 f; and A Kreppel, ‘Understanding the Impact of the Autonomy of National Legislatures on the EU Policy Process’ in N Lupo and G Piccirilli (eds), The Italian Parliament in the European Union (Oxford, Hart Publishing, 2017) 281–83.

The Implementation of EU Law in Member States and its Impact  95 their influence at a time when the Member States have already agreed on the content of a directive and are now under an obligation to apply it.40 Their vote may also in some cases be driven by other political considerations unrelated to the exact content of the directive. Third, and as a complement to the above, the limited involvement of parliaments may be the result of the procedure followed and, in particular, their delegating their competence to their government. A study prepared in 2007 by the EP shows that parliaments in 11 Member States made use of this possibility: Denmark, Estonia, France, Germany, Italy, Ireland, Poland, Portugal, Romania, Spain and the UK.41 In other Member States, like Spain, although delegation to the government is possible, it was not commonly used. Such delegation results from the assumption that transposition measures mostly contain technical elements, whereas an increased speed required in the transposition procedure could also explain this phenomenon.42 Obviously, this situation varies from one Member State to the other based on, among other things, their institutional structure or their political culture. However, the involvement of national parliaments in this procedure bears some importance in terms of the reduction of the EU’s democratic deficit. For instance, it will allow them to ensure the respect of the position they had adopted previously during the legislative procedure at the EU level and it will also enable them to contribute to the design of the best-suited form of transposition where choices have to be made. Furthermore, given the fact that EU affairs are only partially mainstreamed up until now within parliaments – ie, EU affairs are mostly dealt with by EU Affairs Committees and more limitedly so within sectoral committees43 – the increased involvement of MPs in transposition could make them more aware and more sensitive to EU affairs. In addition, it could give an incentive to those MPs who belong to sectoral committees to collaborate early on with the MPs who sit in the European Affairs Committee both to try and exercise influence on the content of the proposal during the legislative procedure and to be able to easily rely on their expertise when they have to implement the directive later on. One difficulty in this regard is nevertheless engendered by the very lengthy procedures at the EU level: the EU institutions require around two years to adopt regulations and directives, which may mean that more than one legislature may pass by between the beginning of the adoption procedure and the moment at which parliaments have to adopt the transposition measures.44 The impact on parliaments or, more specifically, the restriction of their capacity of influence also depends on the type of delegation they make to their government. Some delegations, like in Denmark, are valid indefinitely. This means that if a new directive falls within the scope of a previous delegation made to the government, the government is entitled to transpose the new directive by a new ministerial order without any new delegation of power being needed.45 Conversely, other delegations are only valid for a certain time and

40 O Rozenberg, Les députés français et l’Europe : tristes hémicycles? (Paris, Presses de la Fondation nationale des sciences politiques, 2018). 41 Batta (n 29) 10. 42 ibid. 43 On this issue of mainstreaming of EU affairs within parliaments, see K Gattermann, AL Högenauer and A Huff, ‘National Parliaments after Lisbon: Towards Mainstreaming of EU Affairs?’ (2013) OPAL Online Paper Series No 12. 44 Rozenberg (n 40) 25. 45 Batta (n 29) 10.

96  Diane Fromage thus will need to be re-issued in case a new directive needs to be transposed. In contrast to these individual delegations, in other Member States, governments benefit from a blanket delegation. This is (or was) notably the case in Ireland and in the UK.46 In Ireland, ministers may adopt regulations and they gain permanent statutory effect if they have not been annulled by Parliament within one year. In the UK, the government’s power was even broader since the suspensive clause which exists in Ireland was not provided. Consequently, most EU legislation is transposed by statutory instruments. We will examine in section V whether this heavy reliance on the executive in the transposition procedures is compensated for by tight parliamentary involvement during the EU legislative process. It results from the preceding analysis that despite national parliaments being set aside in the vast majority of transposition procedures, it does not necessarily mean that they do not participate at all; they could, for example, also exercise some influence during the adoption of the delegating acts.

IV.  Wrongful Transposition and its Impact on National Procedures: Sanctions as Drivers for Institutional Reforms at the Member State Level? The consequences that wrongful transposition has for Member States have been an important driver for change in the Member States, since it has led them to reform their transposition procedures. Furthermore, the question as to whether parliaments should not be more closely involved in the monitoring of the transposition procedures after they have been completed needs to be asked. First of all, it is important to note that over the past two decades, delays in transposition by Member States have considerably improved, dropping from 6.3 per cent in 1997 to 0.7 per cent in 2015.47 Even if, like in France, it may seem unclear whether Member States will be able to maintain these good results,48 it remains that such a decrease in delayed transpositions is spectacular and it appears to be somewhat linked to the imposition of high fines by the CJEU, which have sensitised both parliaments and governments to the importance of this question.49 In Belgium, for instance, it is common for the Parliament to wait for the government’s legislative project to start the transposition procedure. Nevertheless, with the strengthening of the sanctions as per Article 260(3) TFEU (see above), the Parliament has a good argument to take

46 Section 2(2) of the UK European Communities Act 1972 and s 3A of the Irish European Communities Act 1972 as inserted by s 3 of the European Communities Act 2007. On the UK, see further R Zbíral and J Grinc, ch 6 in this volume. On Ireland, see G Barrett, The Evolving Role of National Parliaments in the European Union: Ireland as a Case Study (Manchester, Manchester University Press 2018) 187 f. 47 Conseil d’Etat, Directive européennes : anticiper pour mieux transposer (Paris, 2015) 7. 48 ibid 8. 49 In its report on transposition and its future, the French Conseil d’Etat particularly refers to the decision in Case C-304/02 Commission v France ECLI:EU:C:2005:444, 12 July 2005, following which France had to pay €20 million and was subject to a period penalty payment of €57.7 million for each six-month delay period in applying the judgment of the Court in Case C-64/88 Commission v France, 11 June 1991; Conseil d’Etat (n 47) 8, fn 5. More generally on the deterrent effect of fines, see Ballesteros (n 1) 36.

The Implementation of EU Law in Member States and its Impact  97 the initiative itself in order to avoid public funds being wasted on fines.50 In Member States like Poland in which the national Parliament may be held liable for incomplete or incorrect transposition,51 the incentive is even bigger. In fact, given that parliaments are only marginally involved in the procedures of transposition, they should arguably play a role of control: they should be duly and systematically informed by their government of the measures taken to transpose, and they should check whether they are in compliance with the transposed directive and whether the delays attributed for transposition were properly respected. Parliaments would therefore not be empowered vis-a-vis their governments in the actual transposition procedure, but they would be at a later stage in their exercise of tighter control over the actions of their governments. However, delays in transposition are not only due to the need for parliaments and governments to cooperate and anticipate. Within the executive itself, important shortcomings in terms of coordination still exist. These are, for example, related to shared responsibilities among several ministries or also in the insufficient relationship between the person(s) in charge of conducting the negotiation in the Council and those in charge of transposition later on.52 Again, parliaments may try to influence this situation to avoid financial sanctions and thereby slightly rebalance the division of powers in their favour.

V.  The Necessity of (Pre-)legislative Involvement Mechanisms Bearing in mind how transposition happens in practice, parliamentary involvement in the (pre-) legislative phase appears to be of the essence for several reasons. First, it allows Members of Parliament to become familiarised with the EU legislation they may be led to transpose after its approval or regarding which they will delegate transposition powers to their government. Second, it may also allow them to influence the actual content of the legislative proposal so that transposition can intervene smoothly. In fact, this is the direction in which the Commission aims to travel in terms of steering future evolutions.53 The EP too has been eager to strengthen its cooperation with national parliaments, in particular during the law-making process, and it has recalled the importance of (actively) involving national parliaments from an early stage.54 The Lisbon Treaty has marked an important change in terms of allowing national parliaments to participate more closely in EU affairs generally. Consolidating the practice already started under the Barroso initiative in 2006, Article 12(a) TEU provides for the direct transmission of draft legislative acts to national parliaments by the EU institutions; this

50 Transcript of Koen Lanaerts’ hearing in Belgian Senate (n 3) 88. 51 European Parliament (n 3) 4. 52 This issue has arisen, for instance, in Belgium and in France. See transcript of Claudia de Maesschalck’s hearing (Foreign Affairs Ministry) in Belgian Senate (n 3) 91. 53 For instance, the Task Force on Subsidiarity, Proportionality and ‘Doing Less More Efficiently’ convened by the Commission already pointed to the added value of parliaments’ participation in the consultation phase. European Union, ‘Report of the Task Force on Subsidiarity, Proportionality and “Doing Less More Efficiently”’ (2018), https://ec.europa.eu/commission/sites/beta-political/files/report-task-force-subsidiarity-proportionalitydoing-less-more-efficiently_0.pdf, 14. 54 European Parliament, Resolution of 26 October 2017 on monitoring the application of EU law 2015 (2017/2011 (INI)), points 20, 39, 40.

98  Diane Fromage obligation is further detailed and extended to planning documents by Protocol No 1 on the role of national parliaments annexed to the Treaties. Thanks to this direct communication channel, national parliaments are no longer dependent on their national governments for adequately receiving information – and hence to be in a position to conduct their scrutiny – as they used to be before the entry into force of the Lisbon Treaty.55 This change is particularly welcome since it follows a situation in which parliaments used to try to change the meaning of EU legislation during the transposition, following their lack of involvement at an earlier stage. This used to happen, for instance, in France, where only a few MPs participated in the scrutiny of the legislative process, which led the rest of the MPs to try and influence the content of EU legislation during the adoption of transposition measures.56 In addition to this new channel of information, national parliaments, as bodies deemed to ‘contribute actively to the good functioning of the European Union’,57 have also been attributed some rights of participation in the EU Treaties themselves. The most visible and the most commonly used among them is the Early Warning System, within whose framework national parliaments are led to control the respect of the principle of subsidiarity of EU legislative proposals.58 This instrument in itself is only remotely likely to improve the position of national parliaments in transposition procedures since it is strictly limited to a subsidiarity check. Nevertheless, its indirect capacity to enhance the influence of national parliaments should not be underestimated for three reasons. First, the duty national parliaments now have to control the respect for the principle of subsidiarity has led those of them that did not systematically scrutinise all EU legislative proposals prior to the entry into force of the Lisbon Treaty to start doing so.59 Second, the Early Warning System is usefully complemented by the informal Political Dialogue. This initiative, launched by then-President of the Commission José Manuel Barroso in 2006 following the failure of the Constitutional Treaty,60 allows national parliaments to transmit any contribution on any subject at any point in time to the Commission. This means that a national parliament which would identify potential difficulties in the future transposition of an EU proposal could use this avenue of cooperation to inform the Commission about its concerns. This is particularly true as the Political Dialogue not only takes a written form – though it is the most well-known one – but also entails regular personal exchanges among, for instance, MPs and commissioners.61 By using the means of direct personal dialogue, MPs may have a better chance of being heard by the Commission; as has often been remarked, the (written) Political Dialogue is indeed far from being the most efficient means of communication. The Commission’s

55 D Fromage, Les parlements dans l’Union Européenne après le Traité de Lisbonne. La Participation des Parlements allemands, britanniques, espagnols, français et italiens (Paris, L’Harmattan, 2015) ch 2. 56 JL Sauron, ‘Le contrôle parlementaire de l’activité gouvernementale en matière communautaire en France’ (1999) 35 Revue Trimestrielle de Droit Européen 171, 196. 57 Article 12 TEU. 58 On this system, see, among many others: Anna Jonsson Cornell and Marco Goldoni (eds), National and Regional Parliaments in the EU Legislative Procedure after Lisbon: The Impact of the Early Warning Mechanism (Oxford, Hart Publishing, 2017); and K Granat, The Principle of Subsidiarity and its Enforcement in the EU Legal Order: The Role of National Parliaments in the Early Warning System (Oxford, Hart Publishing, 2018). 59 This is, for instance, the case in Spain. For more on this, see Fromage (n 55). 60 On the origins of this initiative, see Davor Jancic, ‘The Barroso Initiative: Window Dressing or Democratic Boost?’ (2012) 8(1) Utrecht Law Review 78. 61 These interactions are accounted for in the Commission’s annual reports on relations with national parliaments.

The Implementation of EU Law in Member States and its Impact  99 responses have often been standardised and have intervened late, which would rather seem to indicate that national parliaments’ potential influence by sending written contributions is limited (in fact, the Commission launched a Task Force on Subsidiarity, Proportionality and ‘Doing Less More Efficiently’ in 2018 with a view to improving this mechanism).62 This is much less the case for opinions expressed directly during an exchange of views with a commissioner or with a Commission official. Third, because national parliaments do not necessarily have the capacity or the expertise to conduct their analysis alone, and because diverging views should not emerge in parliamentary regimes between governments and lower chambers, the introduction of the Early Warning System has also led to the development of closer cooperation between (some) parliaments and (some) governments. For instance, the need to provide information on the principle of subsidiarity may have been the motivation behind the introduction of more detailed governmental memoranda of understanding, as was the case in Italy.63 Actually, beyond the question of subsidiarity, some Member States have understood the need to anticipate transposition, or at least the potential future impact of an EU legislative proposal on their institutional framework or the legislation in vigour early on. To this end, it is not uncommon for governments to transmit reports or explanatory memoranda to their parliaments at an early stage of the EU negotiation process and/or once the legislative proposal has been approved. For instance, in France, the government is called upon to prepare two reports: the so-called Fiche d’impact simplifiée (FIS 1 – simplified impact report) and Fiche d’impact stratégique (FIS 2 – strategical impact report).64 In the former, prepared within three weeks of the publication of an EU legislative proposal, its impact in legal, budgetary, technical and administrative terms needs to be presented. Interestingly, the report is called upon to identify the legal norms which will need to be adopted or reformed where the proposed directive is adopted. Potential transposition difficulties already identified should be duly indicated. This duty rests upon the responsible ministry. This is particularly interesting and could be especially useful for the parliament to get prepared for transposition. However, this is far from sufficient and will need to be complemented by timely and constant updates as to the evolution of the proposal during its examination by the EU legislator, as the proposal will then be subject to amendments which will most likely entail changes in the transposition procedure. However, where the FIS 1 is provided – and this is not systematically the case – it can at least contribute to MPs being aware of what will be coming. At a later stage, ie, within three months of the transmission of a given legislative proposal, the FIS 2 is prepared and sent to parliament. This report is much more precise than its predecessor as it contains a table that details, article by article, the national measures that require amendment during transposition. The technical, budgetary and administrative impact is measured, which allows for the anticipation of the entities that will need to be consulted during the implementation phase. Even if improvements could still intervene in terms of timing, for example, with both the FIS 1 and the FIS 2, Parliament is in a reasonably good position to anticipate the future impact of the obligation of transposition. 62 European Commission, ‘Task Force on Subsidiarity, Proportionality and “Doing Less More Efficiently”’, ec.europa.eu/commission/priorities/democratic-change/better-regulation/task-force-subsidiarityproportionality-and-doing-less-more-efficiently_en. 63 Fromage (n 55) 226. 64 The FIS 2 is an informal initiative whose details are contained in the Guide de légistique, a guide to respect in the preparation of legal acts: www.legifrance.gouv.fr/Droit-francais/Guide-de-legistique.

100  Diane Fromage Finally, taking into account that the main focus of national parliaments in the pursuit of influence in EU affairs is – as it arguably should be – still their own government,65 it is useful to check whether they have the means to influence or at least follow up on their position during the legislative procedure. In this regard, it is interesting to note that the majority of national parliaments/chambers only scrutinise throughout the whole legislative procedures those of the legislative proposals that are deemed particularly important or sensitive (22 out of 37 responding parliaments of a survey conducted by COSAC in 2017).66 The powers national parliaments possess vis-a-vis their governments also vary considerably and range from the possibility to mandate the executive during Council negotiations (here the first example that comes to mind is Denmark, though nine parliaments have this capacity according to a recent COSAC survey),67 to the duty to being kept informed and the possibility to impose a veto under certain circumstances (this is, for instance, the case in Germany), to the sole possibility of approving resolutions or asking questions, as in France. This obviously does not mean that parliaments will not in any case seek to exercise a certain level of influence, even if this is in the form of a non-binding resolution. Nevertheless, it does imply that where parliaments are not kept informed of the evolution of the negotiations taking place at the EU level in an appropriate manner, the chances they have to (a) exercise any influence and (b) to be properly prepared in anticipation of the future adoption of transposition measures are very limited. This was in fact underlined by Koen Lenaerts in the hearing he was submitted to within the framework of an enquiry conducted by the Belgian Senate: he stressed the fact that Member States (and not parliaments specifically) will be all the more inclined to ‘loyally’ transpose a directive if it has been able to previously examine it in depth and to voice certain objections during Council meetings, even if the final result does not necessarily reflect the position it defended.68 This notwithstanding, only slightly less than half of the governments brief their parliaments before they take position in the Council (17 out of 37 responding chambers/parliaments).69 Only 13 governments send explanatory memoranda on all EU legislative proposals whereas 15 do so on selected proposals. As regards ex post control, only 14 governments report back on the position they have taken in the Council. If these facts are taken into account in the context of limited parliamentary involvement in the transposition procedures, it appears that the earlier participation of parliaments in the design of the EU legislative acts compensates for this imbalance in certain Member States only.

VI.  Concluding Remarks This chapter has sought to deconstruct the common assumption according to which the transposition of EU directives is almost entirely a matter for national executives, despite the more active role played by national parliaments in EU affairs in general since the entry

65 COSAC, 66 COSAC, 67 ibid

12.

25th bi-annual report, 2016, 5. 27th bi-annual report, 2017, 11.

68 Transcript 69 All

of Koen Lanaerts’ hearing in Belgian Senate (n 3) 84. data extracted from COSAC (n 66) 12.

The Implementation of EU Law in Member States and its Impact  101 into force of the Lisbon Treaty. It has shown that up to the present day, this is largely true and that there are certain (good) reasons for this imbalance in favour of governments, such as the threat of EU sanctions in the case of wrongful or incorrect transposition, or – more simply – constitutional traditions and structures; the technical character of the transposition measures could still be added to this list of contributing factors. In addition, it has been shown that even if governments are admittedly mostly in charge of transposition and adopt most regulatory measures, parliaments are in fact often involved via the approval of delegating acts. This notwithstanding, the involvement of parliaments during the (pre-)legislative phase should be aimed at in order to compensate for this imbalance of powers in favour of the executive during the transposition process. Parliaments should also be closely involved in the monitoring of the implementation of EU law. As recalled by the EP, strengthened ‘exchanges of information and cooperation between committees of national parliaments working with the EU can help in achieving efficient legislation and should also be used to support a more effective application of EU law by the Member States’.70 The platform for EU interparliamentary exchange (IPEX) should be used to this end and national parliaments are encouraged to participate in the interparliamentary committee meetings organised by the EP.71 As numerous national parliaments express their willingness to be more closely involved in the monitoring of EU law transposition and implementation (16 out of 29 responding parliaments),72 and considering that they have some tools to fulfil these goals, as recalled above, a more active role of (some) national parliaments in this domain can be hoped for, in which case the imbalance of powers in favour of governments would be compensated for to some extent. Nevertheless, given that 13 parliaments did not want their current role to change, this may not apply to, or be likely to happen for, all national ­parliaments in the near future.



70 European 71 ibid.

72 COSAC

Parliament (n 54) point 42.

(n 66) 16.

102

6 National Strategies of EU Law Transposition Does the Distinction between Legislative and Executive Measures Matter in Practice? ROBERT ZBÍRAL* AND JAN GRINC**

I. Introduction The previous chapter demonstrated in detail that the obligation to implement European Union (EU) law produces various and varied effects on the division between the legislative and executive power in the Member States. Implementation inherently instigates imbalances in favour of the latter power, while in the case of executive implementation, parliaments are usually left out completely, as most of the implementing bills that are adopted by parliaments are still drafted by the executive. But what influences the form of implementation that is selected? Do the parliaments try to ‘strike back’ and level the imbalances either during the executive (eg, through scrutiny) or parliamentary implementation (eg, through changing the bills)? Our aim in this chapter is to corroborate the theoretical background provided in Chapter 5 with empirical observations of transposition1 of selected EU directives across various Member States, tracking and recording the key parameters of the transposition process. This book emphasises the temporal element of executive–legislative relations by exploring the effects of the Lisbon Treaty. Yet, as will be pointed out below, strategies of transposition are dominantly affected by the national constitutional and statutory framework and not by EU primary law. This does not mean that the changes brought about by the Lisbon Treaty could not also have resulted in a certain recalibration in terms of transposition. However, these changes would be mainly a question of degree (eg, choosing a model of transposition of EU directives adopted on new legal bases) rather than a question of structure (eg, transforming the overall institutional approach to transposition). As the chapter analyses distinctions between both models of transposition (ie, executive and legislative * The support of Czech Science Foundation (project no. 17-03806S) and EACEA (project Legislative Drafting and Implementation of EU Law) is acknowledged. ** Supported by Progres Q04 (Law in the Changing World). 1 ‘Implementation’ is traditionally used as a more general term relating to all domestic legal obligations linked to EU membership, while ‘transposition’ relates only to directives. As our sample focuses on directives, the latter term is used in this chapter.

104  Robert Zbíral and Jan Grinc transposition) and evaluates their advantages and drawbacks, the results may serve as a normative argument for potential recalibration between the executive and legislative power.

II.  (Im)balance between Executive and Legislative Power and the Choice between Transposition Strategies The imbalances in governance in the Member States caused by EU integration are a well-established thesis.2 The Founding Treaties’ rules on decision-making, in particular the EU legislative procedures involving the Council, strengthen the Member State governments at the expense of their parliaments. National parliaments are not the decision-makers in the EU legislative procedure and their influence on the actual decision-makers, including the governments, is limited among others things by qualified majority voting and scarce resources in terms of time and expertise.3 The implementation of EU law by generally binding national legal acts, most importantly the transposition of EU directives,4 also contributes to the above-mentioned imbalances. Transposition of directives is an obligation of the Member States under EU law.5 A directive may be transposed either by legislative (an act of parliament, a statute) or executive (governmental or ministerial regulation, decree, ordinance etc) methods. The choice between the two options6 is up to each Member State. Because directives are used in almost all EU policies, both for the most politically salient legislation and for implementing measures of a rather technical nature, the national transposition may also take the form of a legislative or an executive act, depending on the content of the directive and other factors that will be discussed below. Since the result to be achieved is determined by the directive itself, it can be argued that in the case of transposition, the national institutions are acting as agents of the EU, implementing often detailed obligations stemming from EU law rather than reaching their own political decisions.7 Together with the threat of an external control in the form of the 2 See, eg, SS Andersen and TR Burns, ‘The European Union and the Erosion of Parliamentary Democracy: A Study of Post-parliamentary Governance’ in SS Andersen and KA Eliassen (eds), The European Union: How Democratic is it? (London, Sage, 1996); M Zier, Nationale Parlamente in der EU (Göttingen, V&R unipress, 2005); J O’Brennan and T Raunio (eds), National Parliaments within the Enlarged European Union: From ‘Victims’ of Integration to Competitive Actors? (London, Routledge, 2007). Even if the de-parliamentarisation thesis is sometimes relativised on the basis of research into parliamentary activities in EU affairs (see K Auel et al, ‘Fighting Back? And, if So, How? Measuring Parliamentary Strength and Activity in EU Affairs’ in C Hefftler et al (eds), The Palgrave Handbook of National Parliaments and the European Union (London, Palgrave Macmillan, 2015) 89), the simple fact that EU law, as opposed to a substantial portion of national law, is not subject to national legislative procedure and adoption by the national parliament remains the defining feature of this thesis. 3 M Mayer. Die Europafunktion der nationalen Parlamente in der Europäischen Union (Tübingen, Mohr Siebeck, 2012) 33–37; R Bellamy and S Kröger. ‘Domesticating the Democratic Deficit? The Role of National Parliaments and Parties in the EU’s System of Governance’ (2014) 67 Parliamentary Affairs 437 ff. 4 Apart from directives, Member States are required to adapt their legal orders to regulations. This is a more varied exercise because regulations range from detailed normative acts that only require minor technical adaptations (if any) to acts with ‘directive-like’ provisions addressed to Member States. In this chapter, we concentrate on directives, because these always need to be transposed as per art 288 TFEU. 5 Article 288 TFEU. 6 We leave out the marginal forms of transposition such as collective agreements. On that option, see Case 143/83 Commission of the European Communities v Kingdom of Denmark [1985] ECR 427. 7 See, eg, P Dann, Parlamente in Exekutivföderalismus (Berlin, Springer, 2004) 185–87; M Mayer, Die Europafunktion der nationalen Parlamente in der Europäischen Union (Tübingen, Mohr Siebeck, 2012) 109–12.

National Strategies of EU Law Transposition  105 infringement proceeding according to Article 258 of the Treaty on the Functioning of the European Union (TFEU), this results in a great emphasis being placed on compliance, which may divert attention from the opportunities for the actual political decision-making of the national legislator, be it the parliament or the executive. Involving the parliament in the transposition procedure, where it seemingly only gives effect to decisions that have already been made at the EU level, may seem unnecessary. The normative point that, as far as legislation is concerned, the parliament enjoys the highest degree of democratic legitimacy in the state, being a directly elected, collective, plurality-based and publicly deliberating body, but loses relevance here. However, transposition has a political side too. The degree to which directives leave discretion for political decision-making on how to achieve the desired result varies substantially.8 There are detailed directives that can be rewritten almost word by word into the transposition measure without any further political input being necessary, but also very abstract directives requiring Member States to make complex political choices of legislative and non-legislative nature. There are directives that use the method of maximum harmonisation and those that set only minimum common rules.9 Directives may also include optional provisions or allow for exceptions.10 Involvement of the parliament can also serve as a form of control over the executive. Not involving the national parliament may obscure the political choices that can be made in the transposition measure and may increase the perception that EU law is beyond the reach of national parliaments. The process of adopting statutes is different from executive law-making in many ways and the involvement of the parliament in the transposition can be beneficial for the transparency and legitimacy of the process. Furthermore, empirical studies suggest that when transposition takes place in the parliament, not only are the bills scrutinised by the parliament rather than being simply rubber-stamped, but they are also subject to amendments by Members of Parliament (MPs).11 Therefore, we assume that there is indeed a difference between legislative and executive transposition, both from a normative and an empirical point of view. Turning to the practice, there is no question that EU law has a significant influence on national legal orders. Although the often-voiced thesis that the EU influences more than 80 per cent of national law proves to be a myth, research confirms that the correct figure still oscillates between 10 and 30 per cent.12 However, these figures do not explicitly reveal what share of EU obligations is implemented through legislative and executive acts. One study that aimed to answer this question on a sample of directives adopted between 1999

8 F Franchino, The Powers of the Union: Delegation in the EU (Cambridge, Cambridge University Press, 2007); R Thomson, R Torenvlied and J Arregui, ‘The Paradox of Compliance: Infringements and Delays in Transposing European Union Directives’ (2007) 37 British Journal of Political Science 685. 9 See, eg, T van der Brink, ‘Refining the Division of Competences in the EU: National Discretion in EU Legislation’ in S Garben and I Govaere (eds), The Division of Competences between the EU and the Member States: Reflections on the Past, the Present and the Future (Oxford, Hart Publishing, 2017). 10 See T Duttle et al, ‘Opting out from European Union Legislation: The Differentiation of Secondary Law’ (2017) 24 Journal of European Public Policy 406. 11 R Zbíral, ‘Comparing the Intensity of Scrutiny for “Domestic” and Implementing Bills: Does Transposition of EU Law Reduce Political Contestation in National Parliaments?’ (2017) Journal of European Public Policy 969; N Dörrenbächer, E Mastenbroek and DD Toshkov, ‘National Parliaments and Transposition of EU Law: A Matter of Coalition Conflict?’ (2015) 53 Journal of Common Market Studies 1010. 12 For results from various Member States, see the contributions in S Brouard et al (eds), The Europeanization of Domestic Legislatures: The Empirical Implications of the Delor’s Myth in Nine Countries (Heidelberg, Springer, 2012).

106  Robert Zbíral and Jan Grinc and 2003 concluded that the rate of parliamentary transposition has varied in individual Member States between less than 10 per cent and about 55 per cent of the total number of directives adopted in this period.13 This already shows great disparities in the approaches taken by Member States, as well as the general prevalence of executive transposition. This suggests that there is a large proportion of directives of an apparently technical nature that no Member State considered necessary to be transposed in the form of a statute. This general prevalence of executive law-making in the process of transposition is not surprising because there are indeed many technical directives, especially in the area of single market harmonisation. From the point of view of legislative/executive (im)balances, the divergence across Member States is more interesting because it begs the question as to whether the distinction between the legislative and executive transposition matters and if any recalibration is normatively warranted. We need to begin by outlining what exactly influences the choice between the legislative and executive transposition. The political salience or character of the directive obviously influences the transposition strategy, but the decision between legislative and executive transposition is not made in a vacuum. There are important constitutional factors that vary across Member States and direct this choice. First, national constitutional or statutory law can address this issue and provide specific procedures for the adoption of transposition measures, most likely delegating this task to the executive because of the reasons and considerations mentioned above. Second, the national constitution may prescribe – without a specific relation to EU law – that certain issues shall only be regulated by a statute or it may set material limits on and conditions of executive law-making.14 Where the national legal order reserves substantial areas to parliamentary legislation, transposition will also be affected. Finally, it is important to see where the boundary between the legislative and the executive law-making is drawn in practice, ie, what exactly is regulated by statutes and by executive acts, because this will most likely influence the choice of transposition strategy. Established sectoral practice and also the broader historical perspective are important. For example, the delegation of legislative power was commonplace in Western Europe even before the European integration project took off. Because of the limited scope and mostly technical nature of EU law in the first few decades, wide executive competence in transposition became the standard.15 For the post-communist countries, on the other hand, a democratic parliament was often the symbol of freedom regained. Coping with masses of EU legal acts during the pre-accession period alerted the politicians to the scope and depth of EU law and created unique challenges of their own,16 including the impetus to rethink the role of parliaments. The practice of delimitation of legislative and executive law-making creates path-dependence. If a directive covers an area previously regulated by an executive act or by a 13 C Sprungk, ‘Legislative Transposition of Directives: Exploring the Other Role of National Parliaments in the European Union’ (2013) 51 Journal of Common Market Studies 304. 14 The so-called statutory reservation. In relation to EU integration, see G Piccirilli, ‘What Remains of the Centrality of Parliamentary Legislation in Continental Europe? An Italian Perspective’ (2015) 8 Jean Monnet Working Papers. 15 PL Lindseth, Power and Legitimacy: Reconciling Europe and the Nation-State (Oxford, Oxford University Press, 2010). 16 See, eg, W Sadurski, ‘Accession’s Democracy Dividend: The Impact of the EU Enlargement upon Democracy in the New Member States of Central and Eastern Europe’ (2004) 10 European Law Journal 371.

National Strategies of EU Law Transposition  107 statute, it is natural to transpose the directive by amending the national legal act in question. Amendments of EU directives are also ordinarily accommodated by amending the ‘original’ national transposing measures. On the other hand, major changes of EU legislation, such as the expansion of the EU into new areas within shared competences or a complete reworking of the EU policy, may dictate a change in the national transposition practice. Based on these preliminary remarks, we intend to explore the practice of executive and legislative transposition by comparing how a set of selected directives (plus one regulation) were implemented in various Member States. On a general level, we assume that there are major distinctions between both forms of transposition, so we decided to focus on four factors that are elaborated upon below. Assumption 1: Highly Salient EU Legal Acts are Transposed through Parliamentary Legislation In the national constitutional context, parliaments usually decide on the most important legal rules, while less important or downright technical issues are regulated by means of executive law-making, which is often characterised as implementing the parliamentary legislation, subordinate or secondary to it, or based on delegation. The use of directives in the EU legislative procedure ranges from the most salient issues to the technical matters. Therefore, we do not expect any Member State to use exclusively either the legislative or executive form of transposition. On the contrary, we anticipate both options to be regularly employed, the choice between them depending on the political salience of the directive in question. Obviously, the ratio of legislative/executive transposition may vary as the level of salience is subjective and there are also the other above-mentioned factors in play. Furthermore, transposition again does not have to be performed on a ‘one-to-one’ basis. For example, if a directive includes technical annexes, templates of forms or detailed provisions that are likely to be frequently updated (usually an authorisation for the Commission to adopt delegated acts is included), transposition may comprise both legislative and executive acts. In these cases, the main body of the directive will most likely be transposed by a legislative act, leaving the less important or often amended elements for executive transposition. Assumption 2: Transposition through Parliamentary Legislation Increases the Transparency of the Transposition Process The voyage of a governmental bill through parliamentary procedures, including debates and votes, still serves as the best form of control over the government’s activities. The implementation of EU law is no exception as it also foresees important political choices by the government. The bill is publicised before it is debated in the parliament and there is also usually more time for the mobilisation of public opinion or interest groups. The parliament, including the opposition, obtains a chance to scrutinise the bill, and the government must defend its approach. In contrast, by opting for executive transposition, the government may find it easier to conceal ‘foul play’, such as problematic gold-plating or pursuing its own vested interests that are not supported by the public. These negative developments may of course also arise during the parliamentary implementation. The crucial difference is that the latter form offers a transparent forum for disclosing the interests of all actors and mutual scrutiny. Of course, executive measures are not completely exempt from parliamentary control, but this tends to be indirect, after the fact (after the adoption of the measure) and thus much less effective.

108  Robert Zbíral and Jan Grinc Assumption 3: Transposition through Parliamentary Legislation Increases the Utilisation of National ‘Discretion’ in the Transposition Process The parliamentary form of transposition offers the chance for a comprehensive discussion on the political choices made during the transposition process and may lead to the accommodation of a wider set of interests, especially if the government requires additional votes in the parliament for the adoption of the measure. This would usually result in the application of an elaboration strategy, which fully utilises the discretion provided by the directive and attempts to truly transform its text and ‘mask’ it as a seamless part of the domestic legal order.17 Executive implementation, on the other hand, is usually managed by experts in the public administration who favour implementing solutions that result in unproblematic compliance with the requirements of the original EU act (the ‘copy-out’ approach).18 Assumption 4: Transposition through Parliamentary Legislation Increases the Chance of Non-compliance (Missing the Implementation Deadline or Wrongful Transposition) Many things can go wrong during the transposition process. The veto player theory suggests that the higher the number of actors involved in the decision-making, the greater the chance of failure.19 The participation of the parliament, with its preference for political rather than expert culture, may increase the risk of an agreement not being reached and naturally the additional layer will slow down the transposition. Finally, parliaments may be dissolved or be otherwise limited in their function, especially in the weeks preceding parliamentary elections and during the formation of the new government, which may delay the transposition even further. These circumstances are definitely not exceptional, but EU legal acts could not take them into account as the domestic situation in Member States varies and is unpredictable. Despite these drawbacks, executive transposition might benefit from the possibly swifter reactions of governments. It may also fully utilise the services of skilled and experienced public administration, which has usually been more closely involved in the decision-making procedure that preceded the adoption of the directive.

III.  Research Design, Case Studies and Data A.  Research Design Due to limited available theoretical research, we have opted for an exploratory research design consisting of collecting relevant data on the transposition of nine EU legal acts in five Member States and subsequently analysing the data using descriptive statistics.

17 Gold-plating is also a frequent result of the elaboration strategy. 18 For an explanation of both strategies, see D Greenberg, ‘The “Copy-out” Debate in the Implementation of European Union Law in the United Kingdom’ (2012) 6 Legisprudence 243. 19 G Tsebelis, ‘Veto Players and Law Production in Parliamentary Democracies: An Empirical Analysis’ (1999) 93 American Political Science Review 591.

National Strategies of EU Law Transposition  109 The sample of 45 cases precludes any far-reaching generalisations, but provides a useful starting point on the role of both executives and parliaments in the transposition process, the ensuing (im)balances between them and the potential for future recalibrations in their relationship. To at least partly compensate for the limited scope of the sample, the choice of EU acts and countries was driven by an effort to encompass wide variability. First, we have chosen three policy areas with different degrees of integration: agriculture is a heavily integrated policy field of exclusive EU competence, consumer protection is closely linked to internal market and, finally, justice and home affairs is a sector that remains very sensitive to Member States, despite its gradual conversion from intergovernmental to supranational mode. Second, within each policy field, we tried to select directives with different salience. Determining the salience of EU legal acts is a notoriously complex issue with little scientific consensus.20 The initial selection of acts was based on expert knowledge21 and was verified by a calculation derived from both the number of days the proposal was negotiated by EU institutions and the number of recitals in the final text.22 We selected directives because of the clear duty of the Member States to adopt measures of transposition. However, as there was no highly salient directive in the Common Agricultural Policy, we instead included a regulation which required the adoption of national implementing measures in a similar manner to what would be required for a directive. All EU acts in our sample were adopted between 2011 and 2013. This ensured that the transposition in all Member States had already been completed and that the research captured the practice within a reasonably short timeframe, which means that the results should not be affected by possible changes in the practice of Member States over time.

B.  Country Selection and National Constitutional and Statutory Frameworks for Transposition Variability was also the main driver for the selection of countries.23 We decided to include the Czech Republic, Germany, Poland, Slovakia and the UK, thus covering both small and large as well as old and new Member States. However, the primary reason for this was that the chosen jurisdictions formally employ the following distinct constitutional and institutional transposition framework.24

20 See A Warntjen, ‘Measuring Salience in EU Legislative Politics’ (2012) 13 European Union Politics 168. 21 One of the authors (Jan Grinc) regularly works with EU legislative proposals as part of his work in the Czech Senate. 22 A legal act from the sample with both the maximum number of recitals and the longest duration of negotiations would have an absolute salience value of 2. 23 The language skills of the authors were the other important factor. 24 This section is based on the cited legal acts and summaries of formal transposition frameworks of the covered Member States contained in the Czech Presidency of the EU: Implementation of EU Law in the Member States (Prague, Czech Presidency of the EU, 2009).

110  Robert Zbíral and Jan Grinc Table 6.1  List of legal acts selected for analysis Common Agricultural Policy

Consumer protection

Justice and home affairs

Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the Common Agricultural Policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009

Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council

Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State

Notes: salience = 1.53

Notes: salience = 1.74

Notes: salience = 1.51

Directive 2013/31/EU of the European Parliament and of the Council of 12 June 2013 amending Council Directive 92/65/EEC as regards the animal health requirements governing intra-Union trade in and imports into the Union of dogs, cats and ferrets

Commission Directive 2011/59/EU of 13 May 2011 amending, for the purpose of adaptation to technical progress, Annexes II and III to Council Directive 76/768/ EEC relating to cosmetic products

Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA

Notes: salience = 0.41

Notes: salience = 0.16 (delegated legislation)

Notes: salience = 1.19

Commission Implementing Directive 2013/63/EU of 17 December 2013 amending Annexes I and II to Council Directive 2002/56/EC as regards minimum conditions to be satisfied by seed potatoes and lots of seed potatoes

Commission Directive 2011/90/EU of 14 November 2011 amending Part II of Annex I to Directive 2008/48/EC of the European Parliament and of the Council providing additional assumptions for the calculation of the annual percentage rate of charge

Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order

Notes: salience = 0.12 (implementing act)

Notes: salience = 0.06 (delegated act)

Notes: salience = 1.05

National Strategies of EU Law Transposition  111 Transposition in the UK is heavily influenced by wide empowering clauses contained in section 2 of the European Communities Act of 1972, which grant the executive a right to transpose almost all obligations linked to EU membership by executive statutory instruments. Section 2 even makes it possible to amend parliamentary acts through these executive instruments in the case of transposition (the so-called Henry VIII clauses). Legislative transposition is required only in the case of the introduction of new taxes or criminal penalties and in practice very few parliamentary acts transpose EU legislation. Parliament may also scrutinise the exercise of the aforementioned statutory instruments, either through negative (parliament is entitled to reject the executive act) or positive (parliament must actively consent to the executive act) procedures. About 90 per cent of statutory instruments are in practice adopted under the former procedure, with no involvement of the parliament. In Poland, there are no special constitutional provisions for the transposition of EU law. The Polish Constitution, like those in other post-communist states, places strong emphasis on the statutory reservation. The executive measures might be issued by the government only under rather strict conditions (Article 92 of the Polish Constitution). These constitutional rules apply to both ‘domestic’ and ‘EU’ executive law-making. At the sub-constitutional level, the standing orders of the lower chamber (Sejm) anticipate a special procedure for bills that transpose EU obligations, making their legislative process in the Sejm simplified compared to ‘domestic’ bills (Chapter 5a of the Standing Orders). There are no special procedures for the transposition of EU directives in the Czech Republic. Transposition follows procedures for ‘domestic’ acts. The general constitutional rules regarding the delimitation between parliamentary statutes and executive ordinances reserve many important issues to statutes, most notably imposing primary duties on individuals (Article 4 of the Czech Charter of Fundamental Rights). Executive ordinances (Articles 78 and 79 of the Czech Constitution) can only implement statutes, ie, they have to relate to a concrete statute or require explicit authorisation by a statute and always have to keep within the boundaries of the statute (ie, they cannot regulate completely new issues not outlined in the statute). In addition, there are many constitutional statutory reservations. All this is reinforced by the case law of the Constitutional Court, which interprets and enforces the limits of executive law-making rather strictly. The Slovak Constitution was significantly amended prior to EU accession, also with the aim of facilitating the transposition of EU law. In order to ‘overcome’ statutory reservation, Article 7, section 2 of the Constitution newly provides an opportunity for the government to adopt the so-called approximation regulations. These may be utilised for transposing EU legislation and have the force of a statute – Slovakia was the only new Member State that introduced such instruments. The government is obliged to inform the Parliament (National Council) of the adopted approximation regulations every six months and the Parliament might request that any of these instruments be resubmitted as a bill, but in practice this has never happened. Apart from approximation regulations, EU directives may be transposed through executive measures of sub-statutory legal force and standard parliamentary statutes. In the latter case, the transposing bill follows the same procedure in the parliament as domestic bills.

112  Robert Zbíral and Jan Grinc As is the case in the Czech Republic, there are no special transposition procedures in Germany either. The general constitutional conditions of executive law-making are strict: a statute can authorise the executive to issue ordinances, but it has to delineate their content, purpose and scope (Article 80 of the German Basic Law). There are many statutory reservations in the Basic Law and there is also an established doctrine in German jurisprudence and the case law of the Federal Constitutional Court, according to which substantial political decisions must be made by the Parliament itself (in the form of a statute) and cannot be delegated to the executive ordinances (Wesentlichkeitstheorie). Germany is the only federal state in our sample. While the federal structure poses an additional challenge for the implementation of EU law, it is not clear whether it affects the choice between the legislative and the executive method of transposition at any level.

C.  Data and Methods The sample contains a total of 45 cases of national transposition, yet the actual number of cases was 43 as the UK opted out of Directive 2011/98 and did not transpose Directive 2013/31, probably because it considered the existing domestic legislation to be sufficient. All the data for the final sample were extracted from publicly available databases accessible on official websites. Data relating to EU legal acts were relatively easy to obtain from EUR-Lex. We faced more a complicated task in cases of national databases both at the parliamentary level and (even worse) at the executive level; in addition, the unique interface and content of each website complicated the coding process. Because the legislative procedures differ slightly from state to state (eg, in terms of structure of consultations or parliamentary debates), the quantitative comparison across states might be slightly misleading in relation to some variables. Apart from these technical constraints, the applied research design also demanded interpretative choices due to the complex nature of the transposition process. First, our approach makes it possible to test the above-mentioned assumptions against data linked to only one transposing measure. Yet, in practice, the EU act might be transposed through numerous domestic measures – for example, Directive 2011/83 on consumer rights was allegedly transposed with 22 legislative acts in the Czech Republic.25 The challenge was thus to identify the national measure that transposed the bulk of the EU legal act. This endeavour was eventually easier than expected, because the bodies responsible for transposition preferred to insert the core of the transposing provisions into one domestic measure, while the other transposing measures listed in EUR-Lex were peripheral at best.26 The second problem is

25 See the data in EUR-Lex, available at: eur-lex.europa.eu/legal-content/CS/NIM/?uri=CELEX:32011L0083. 26 In this case, the ‘peripheral’ transposition consisted mostly of the new specification of competence of national authorities or administrative delicts relating to the wording of the new directive and of updating various crossreferences in the legal order, However, the issue of the ‘main implementing domestic act’ indicates the importance of the selection of proper methods. Other researchers who analysed national implementing measures decided that the ‘main act’ is either the one implemented earliest or the first one on the EUR-Lex list, but both of these approaches distort the reality (see also the discussion in T König and B Luetgert, ‘Troubles with Transposition? Explaining Trends in Member-State Notification and the Delayed Transposition of EU Directives’ (2008) 39 British Journal of Political Science 163, 168–71).

National Strategies of EU Law Transposition  113 also associated with the methods of transposition. Member States usually transpose EU acts in a ‘one-to-one’ fashion, which means that the provisions stemming from EU acts are adopted through self-standing new legal acts or self-standing amendments to an existing legal act.27 But sometimes they decide to attach these transposing provisions to another proposed legal act. For example, in the Czech Republic, obligations from Directive 2011/83 were transposed as part of the new Civil Code that entered the legislative process during the transposition period. Obviously, the relevant provisions originating in the Directive formed only a miniscule part of the whole domestic act and data linked to that act had little validity as to the analysis of the transposition process. The difference between ‘purely transposing acts’ and ‘combined transposing and non-transposing acts’ must be taken into consideration when the results are interpreted. We use simple descriptive statistics as a method of data analysis to test the assumptions set out above. This approach is validated by an exploratory design of our study and also an insufficient amount of data for the construction of quantitative models that will make it possible to calculate the statistical probability for correlation or causation. Because of high variability in the data, two average values (mean and median) are presented.

IV.  Results and Discussion This section begins by exploring which strategies of transposition the Member States employed in the case of EU acts selected for the sample and subsequently will investigate differences between legislative and executive transposition based on the four assumptions formulated in section II above: first, we assume that highly salient EU legal acts are transposed through parliamentary legislation; second, we assume that transposition through parliamentary legislation increases the transparency of the transposition process; third, we assume that the transposition through parliamentary legislation increases the utilisation of national ‘discretion’ in the transposition process; and, fourth, we anticipate that transposition through parliamentary legislation increases the chance of non-compliance.

A.  Methods of Transposition: Overview of the Sample The main objective of our enquiry was to analyse strategies of transposition applied by the Member States. In general, theoretical expectations discussed at the beginning of the chapter seemed to be confirmed. The findings (see Table 6.2) show a positive correlation between the higher salience of EU acts and the choice of the parliamentary form of transposition. This strategy is dominant in the justice and home affairs area where high salience is accompanied by traditional sensitivity of the field (criminal law, civil procedure). The executive strategy, on the other hand, prevails in the case of the transposition of directives adopted by the Commission as delegated acts. Apart from the position of the UK, there are basically only two ‘inconsistencies’ in the sample. The first one – executive implementation of the politically

27 See

also ch 5 by D Fromage in this volume.

114  Robert Zbíral and Jan Grinc salient Regulation 1307/2013 in Slovakia and the Czech Republic – may be explained by the fact that due to the direct effect of most provisions, only small parts of the Regulation had to be implemented. The second exception represented by parliamentary transposition of the short and technical Directive 2011/90 was a result of path-dependency, because Directive 2011/90 amended directives that had been previously transposed via statutes. The saliency of EU acts also affected country-specific observations. Despite the formally distinct approaches to the implementation of EU law noted above, the shares of executive and legislative form are almost the same for Slovakia, Germany, the Czech Republic and Poland (five legislative and four executive transpositions for the first three, and six legislative and three executive transpositions for Poland). The congruence of the scores of these Member States might be explained by their experience with authoritarian regimes, something that is reflected in the constitutional framework and customs that reserve important decisions to parliaments.28 The UK was a clear outlier and, as expected, given the provisions in the European Communities Act 1972, transposed all selected EU acts via executive statutory instruments. One may wonder whether this nationally induced limitation on parliamentary involvement and the resulting imbalance could have contributed to the atmosphere of parliamentary powerlessness vis-a-vis European legislation. Despite the traditionally strong position of single-party governments in the UK’s political system and legislative procedure, there is evidence that parliamentary involvement matters in relation to domestic policy29 and there is no reason to suppose that it would not be the same if transposition acts had to be adopted by Parliament. It is interesting that although the Slovak constitutional order grants the use of transposition measures in a similar manner to statutory instruments in the UK and that a single-party majority government ruled Slovakia between 2012 and 2016,30 this competence was not exercised. This may reiterate the conclusion that wider constitutional ‘culture’ plays an important role and governments do not try to ‘recalibrate’ the balance and abuse their position during transposition. Table 6.2  Strategies of transposition across the sample Common Agricultural Policy

Consumer protection

Justice and home affairs

Regulation 1307/2013

Directive 2011/83

Directive 2011/98

PL

SK

UK

CZ

DE

Directive 2013/31 PL

SK

UK

CZ

SK

UK

CZ

SK

UK

CZ

DE

PL

COM Directive 2011/59 DE

COM Directive 2013/63 PL

PL

DE

PL

SK

UK

CZ

DE

PL

COM Directive 2011/90 PL

SK

UK

CZ

DE

SK

UK

CZ

DE

Directive 2011/93 SK

UK

CZ

DE

Directive 2011/99 PL

SK

UK

CZ

DE

Key: white = parliamentary transposition; light grey = executive transposition; dark grey = no transposition

28 It is true that at least in the case of Germany and the Czech Republic, constitutional courts emphasise the crucial role of the national parliament in the process of European integration, but they do not do so primarily in relation to the transposition of EU law. 29 M Russell, D Gover and K Wolter, ‘Does the Executive Dominate the Westminster Legislative Process? Six Reasons for Doubt’ (2016) 69 Parliamentary Affairs 286. 30 Most of the national implementing measures were adopted during this timeframe.

National Strategies of EU Law Transposition  115 From a technical point of view, there were both cases of ‘one-to-one’ transposition, where the national measure faithfully mirrors the directive and does not go far beyond it (Germany), and national measures transposing more than one directive or including parts of purely domestic regulation (Poland and the Czech Republic). As indicated above, sometimes Member States notified the Commission of multiple transposing acts, but in the majority of cases in the sample, only a single national transposition act was listed in EUR-Lex. No EU act from the sample was transposed through complex transposition schemes combining legislative and executive measures.

B.  Openness and Transparency of the Transposition Process Legislative transposition is obviously much more transparent than executive transposition. The bills were provided with explanatory notes and the parliaments’ websites allowed us to track the whole procedure, including discussions, amendments and votes on the transposition measure. The transparency of the executive transposition procedures varied greatly.31 In the UK and Germany, we encountered a ‘black box’ approach, where only the final text of the transposing act was available to the public, sometimes accompanied by brief explanatory notes. On the other hand, the three ‘new’ Member States were surprisingly much more open and include on publicly accessible websites data not only on the drafting and consultations of executive transposition measures, but also on the executive preparatory phase of transposing bills.32 Besides these general observations, we have examined the openness of the transposition process by analysing the scope of formal consultations during the drafting of transposition measures within the executive.33 The list or number of subjects consulted was available in the majority of cases. The access to consultation did not seem to be limited in comparison to domestic acts. Predictably, qualitative analysis proved that mainly actors with vested interests, such as ministries and other public bodies, participated in the consultations. A slightly higher average number of consulted subjects in the case of legislative transposition did not proceed from different rules, but might be explained by the higher salience of directives transposed in this way. The general public was largely excluded from the official consultation process, but this outcome was expected, as only Slovakia allows for the official participation of citizens. Another variable that might illustrate the openness of the transposition process is the complexity of explanatory notes (memoranda). The data given in Table 6.4 are notable for two reasons. First, there is a clear distinction between executive and legislative transposition: the length of explanatory reports of the latter acts is considerably higher in all countries. The explanation is similar as in the case of the number of subjects consulted/ submitting comments. The main reason seems to be political salience and the legal 31 The transparency of executive transposition mirrors the transparency of executive law-making in general; in other words, the transposing measures do not enjoy either positive or negative exceptions. 32 For Slovakia, see www.slov-lex.sk/vyhladavanie-legislativneho-procesu; for Poland, see legislacja.rcl.gov.pl; and for the Czech Republic, see apps.odok.cz/veklep. 33 The executive was responsible for drafting of all transposing bills in the sample, including the above-mentioned Czech transposition of Directive 2011/83, which was done by amending the draft Civil Code during the legislative procedure in Parliament.

116  Robert Zbíral and Jan Grinc Table 6.3  Number of subjects consulted during drafting of executive acts/bills N

Min

Max

Median

Mean

Standard deviation

Executive measures

6

8

18

12

12

4

Legislative measures

14

6

51

14

17

13

Note: only purely transposing domestic acts are included

intricacies of transposing legislative acts rather than the specific structure or content of these explanatory notes. Second, the data show significant variability among Member States in their attitude towards the preparation of explanatory notes – the Czech Republic is a visible outlier, with explanatory notes running much longer than the length of the transposing acts themselves. The unique Czech position is probably related to the extensive list of obligatory parts of explanatory notes. It is also worth mentioning that Member States such as Slovakia or the Czech Republic even make available the transposition tables that contain a matrix linking concrete provisions of EU legal acts with their respective national law provisions. We can conclude that public bodies in this sense dedicate considerable attention to the transposition measures.

C.  Level of Discretion during the Transposition Process Analysis of national discretion in the process of transposition is not an easy task to undertake because despite both quantitative34 and qualitative35 efforts, there has not been any scientific consensus on how to define discretion during the transposition process and how to objectively measure it. We decided to use a very simple method of comparing the length of the original EU legal act and the transposing measure. This approach is not affected by the amount of discretion that the directive actually provides (eg, minimum or total harmonisation) as this variable logically remains constant for the same EU legal act. The only difference in the length of national measures will lie in the strategy exercised Table 6.4  Length of explanatory notes (ratio to text of the transposing measure, in %) PL

SK

UK

CZ

DE

Executive measures

16

47

160

256

NA

Legislative measures

138

113

NA

626

146

Note: only purely transposing national acts are included

34 See, eg, F Franchino, The Powers of the Union: Delegation in the EU (Cambridge, Cambridge University Press, 2007). 35 See, eg, N Dörrenbächer and E Mastenbroek, ‘Passing the Buck? Analyzing the Delegation of Discretion after Transposition of European Union Law’ (2019) 13 Regulation and Governance 70.

National Strategies of EU Law Transposition  117 by the Member States. There is an assumption that if the leading method of transposition consisted of copying out the directive and inserting it almost word for word into the national act, there would be little to no difference between the length of the directive in the language of the Member State and the length of the transposition measure.36 In contrast, when the domestic actors decide to rephrase the content of the directive, the length of the implementing measures shall increase. The results show few differences in any values of descriptive statistics between executive and legislative strategies.37 At the same time, there was noticeable variation between the length of the EU acts and the transposition measures; the data revealed that the distinctions originated in the Member States rather than being driven by specific features of original EU acts.38 A few of the transposing measures were much shorter, probably because national legal orders had at least to a certain extent already regulated the goal set by the directive. However, on average, transposing measures tended to be about one-third longer than EU acts. This indicates that the copy-out approach seemed to be used less often than elaboration – it is likely that in order to make the often abstract provisions of directives effective, more detailed transposing legal rules are required. Second, we tracked the difference between the length of the bill submitted to the parliament and the final version of the statute. The data demonstrate that parliaments are not mere rubber-stamping bodies during the transposition process. There were a few outlying values that indicated significant transformation of the original bill; on average, we recorded a slight increase of the length of bills. The findings in the previous paragraph illustrate that the presumed low interest of MPs in the legislative transposition measures might be misleading. To review the often-voiced Table 6.5  Length of the EU acts vs length of the transposing measures (change in %) N

Min

Max

Median

Mean

Standard deviation

Number of longer transposing measures

Executive measures

10

–52

120

35.6

39.6

50.5

8 (80 per cent)

Legislative measures

14

–71

169

35.9

44.8

69.8

11 (79 per cent)

Note: only purely transposing national acts are included

Table 6.6  ‘Contribution’ of the parliamentary phase (change between the length of transposing bills submitted to parliaments and the length of final statutes, in %) N

Min

Max

Median

Mean

Standard deviation

14

–43

285

6.6

21.6

69.4

Note: only purely transposing national acts are included

36 Obviously, the assumption holds only in the case of purely transposing national measures. 37 The data on the length of EU acts were coded in national languages. 38 For example, there is no obligation to transpose provisions that contain no legal rule. Therefore, if the directive is mainly of a declaratory nature, the national implementing act shall be shorter.

118  Robert Zbíral and Jan Grinc thesis further, we measured the duration of debate in the first reading of the transposition bills and the length of amendments to the bills presented by parliamentary committees. Despite very high variance in the data, in general considerable attention seems to be paid to the transposition bills. The extent of committee amendments strengthens our previous conclusion of parliaments as worthy actors. However, since we did not qualitatively analyse the content of the debates or compare the data to data from purely domestic bills, we cannot draw absolute conclusions here. It should be noted that parliaments did not participate in the transposition of the executive measures in the sample, nor did they scrutinise them ex post, even if the possibility was there to do so. For example, in the UK, all the statutory instruments were adopted using the negative procedure, under which the instruments enter into force unless either the House of Commons or the House of Lords unless either the House of Commons or the House of Lords passes a motion that the instrument is annulled, within a period of 40 days. Instruments might be also debated if any MP so requests.39 In practice, no debates were initiated.

D.  Impact of the Transposition Strategy on Timely Transposition and Compliance Similarly to previous cases, interpretation of the last assumption requires a distinction to be drawn between technical means of transposition. If we account for only purely transposing Table 6.7  Data on selected activities during the parliamentary stage of the transposition process s

N

Min

Max

Median

Mean

Standard deviation

Plenary discussion length (first reading, words)

17

984

25,824

6,054

7,718

7,091

Length of amendments from committees (% of original bill)

13

4

226

39

52

59

Note: only purely transposing national acts are included

Table 6.8  Number of days before or after transposition deadline N

Min

Max

Median

Mean

Standard deviation

Pass deadline

Executive measures

14

–179

–2

–41,5

–56.9

53.3

0

Legislative measures

17

–223

331

–24

11.9

163.3

8 (47 per cent)

Note: only purely transposing national acts are included

39 For details of the scrutiny procedures on statutory instruments, see R Fox and J Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (London, Hansard Society, 2014).

National Strategies of EU Law Transposition  119 national measures, no act transposed through an executive measure was delayed, while the share of late transposition through statutes reached almost 50 per cent. This supports the assumption that the inclusion of parliaments as additional actors increases the risk of belated transposition. However, it needs to be reiterated that legislative measures examined here generally had higher salience and thus might have been more politically and legally complex than the executive measures in our sample. Table 6.9 offers the same statistics for both legislative and executive measures, including those that contained provisions not related to the transposed EU act. Surprisingly, the results remain largely unchanged; in absolute terms, we can notice mainly the slight increase of delay in the case of executive measures, which implies that the ‘enrichment’ of the measure with domestic impulses might compromise the timely transposition due to disagreement within the government (bureaucracy). We also collected data on infringement proceedings relating to covered EU acts.40 Parliamentary transposition doubles the chance of the initiation of the process, an expected outcome given the delays in this type of transposition discussed above.41 However, all the infringement procedures ended in the early stages and thus either the parliamentary transposition did not lead to more materially wrongful transposition or any potential problems were quickly resolved.

V. Conclusion The objective of this chapter has been to examine how selected EU Member States transposed several EU acts and how the executive–legislative (im)balance generally observable in Table 6.9  Number of days before or after the transposition deadline N

Min

Max

Median

Mean

Standard deviation

Pass deadline

Executive measures

22

–421

74

–27

–58.6

100.9

3 (13 per cent)

Legislative measures

21

–765

331

–24

–34.0

225.9

9 (43 per cent)

Table 6.10  Information on infringement proceedings N

Formal notice

Further stages

Executive measures

22

3 (14 per cent)

0

Legislative measures

21

6 (29 per cent)

0

40 Data available at: ec.europa.eu/atwork/applying-eu-law/infringements-proceedings/infringement_decisions/ ?lang_code=en. 41 Of course, late transposition is only one of the reasons for the initiation of infringement procedures according to art 258 TFEU.

120  Robert Zbíral and Jan Grinc EU affairs plays out in practice within this framework. We theorised that there were normative distinctions between transposition by executive and legislative measures. Following the collection and analysis of various types of data relating to the transposition process across a group of five countries, two key findings emerged. First, all our assumptions on how the executive and legislative transpositions differ were empirically validated. Second, despite differences in the formal constitutional and institutional frameworks among Member States, in our sample the same EU acts were generally implemented through similar types of national measures. Higher salience seemed to be positively correlated to parliamentary transposition. This is obviously a positive inference that generally reflects normative anticipation; in this sense, we do not see any imminent demand for the recalibration of national transposition frameworks. The UK represented the only outlier with exclusively executive measures and one might wonder how the peculiarly weak position of the UK Parliament in transposition contributed to Brexit. Obviously, the conclusions are only tentative as they are based on a rather small sample. Additional broadening of the dataset as to the number of EU acts and Member States involved would be useful. Similarly, further qualitative analysis examining why the transposing domestic measures of the same EU act exhibit such a high variance among the Member States is also required. Even given the methodological limitations of our research, we may conclude that transposition should not be considered a merely technical exercise. It evidently matters in many ways whether it is performed solely by the executive or with the involvement of parliaments. It can be said that in the case of the transposition of EU law, the often-repeated argument of the weakening of parliaments vis-a-vis executives is only one side of the coin; the other side is the room for Member States to decide on their transposition strategy, which influences the transparency and parliamentary control over the political choices to be made in the legislative implementation of EU policies.

7 Failed Constitutional Reforms and Silent Constitutional Transformations in Executive–Legislative Relations The Case of Italy NICOLA LUPO

I. Introduction This chapter analyses the evolutions of executive–legislative relations in Italy since the entry into force of the Constitution in 1948, with a view to analysing how it has evolved and what the main drivers of those changes have been, especially in the last 25–30 years. In order to do so, it makes use of the concept of ‘form of government’, ie, a concept employed rather commonly in Italian constitutional law to refer, according to the traditional definition, to the way in which the function of political direction is distributed amongst the different constitutional bodies.1 In other words, through the form of government, the institutional system is analysed by trying to identify the rules that govern the circuit of the political direction (‘indirizzo politico’):2 the way in which the main policies are designed and implemented, namely, in the Italian case, between the executive, the Parliament and of course the citizens (in their role as voters through the electoral system), including the influence of the other constitutional bodies, ie, the President of the Republic and the Constitutional Court. In its initial part (sections II–III), this chapter recalls the provisions of the Italian Constitution (1948) on the relationship between the executive and the legislature, creating

1 See C Mortati, Le forme di governo. Lezioni (Padua, Cedam, 1973) 74 ff. 2 On this notion, see V Crisafulli, ‘Per una teoria giuridica dell’indirizzo politico’ (1939) 1–4 Studi urbinati 53 ff. See also T Martines, Contributo ad una teoria giuridica delle forze politiche (Milan, Giuffrè, 1957) 162 ff; E Cheli, Atto politico e funzione di indirizzo politico (Milan, Giuffrè, 1961) 75 ff; T Martines, ‘Indirizzo politico’ in Enciclopedia del diritto, vol XXI (Milan, Giuffrè, 1971) 134 ff; M Dogliani, Indirizzo politico. Riflessioni su regole e regolarità nel diritto costituzionale (Naples, Jovene 1985) 43 ff; P Ciarlo, Mitologie dell’indirizzo politico e identità partitica (Naples, Liguori 1988) 26 ff; M Ainis, A Ruggeri, G Silvestri and L Ventura (eds), Indirizzo politico e Costituzione. A quarant’anni dal contributo di Temistocle Martines (Milan, Giuffrè, 1998); A Morrone, ‘Indirizzo politico e attività di governo. Tracce per un percorso di ricostruzione teorica’ (2018) 1 Quaderni costituzionali 7 ff.

122  Nicola Lupo a mildly rationalised parliamentary form of government characterised by a rather weak and unstable executive. It then goes on to note that these constitutional provisions have been the object of several constitutional reform proposals over the last 35 years, aimed at further stabilising the executive and to follow up on the transformation of the electoral law. Many constitutional reforms have been drafted by ‘ad hoc’ parliamentary committees and two of them have even been approved by the two Houses, according to the heavier procedure of constitutional reform outlined in Article 138 of the Constitution, which requires two votes by each House and the possibility to ask for a referendum. However, both of them have subsequently been rejected by the citizens through constitutional referendums held in 2006 (on a revision of the entire second part of the Constitution proposed by the Berlusconi government) and in 2016 (on a revision of the symmetrical bicameralism proposed by the Renzi government). In the following part (sections IV–VI), this chapter seeks to demonstrate that the failure of these constitutional reforms does not mean that the rules of the Italian form of government have remained unchanged. Indeed, executive–legislative relations have been deeply influenced and recalibrated by two drivers: on the one hand, by the electoral law, which has been rewritten – by abrogative referendums, the Parliament or the Constitutional Court – seven times within the same timeframe; and, on the other hand, by the effects of Italy’s membership of the European Union (EU). The result of both these silent constitutional transformations has been a strengthening of the executive and its leader, the President of the Council of Ministers, at the expense of Parliament’s powers. In any case, these transformations determined an incomplete, imbalanced and unstable evolution, as this strengthening took place without formally increasing the enumerated powers of either the executive or its president, but only through a more intense usage of their original toolkit. All this contributes to explaining the variable and still controversial balance of powers that seems to characterise the last few executives in Italy, including their relations with Parliament, in the perennial wait for a more stabilised setting of the form of government.

II.  Executive–Legislative Relations in the Italian Constitution (1948): A Mildly Rationalised Parliamentary Form of Government The Italian Republican Constitution, which entered into force on 1 January 1948, designed a parliamentary form of government with a limited series of mechanisms of rationalisation. Since its beginning, the Constituent Assembly was very clear to opt in favour of a form of government that was neither presidential nor directorial, but a rationalised parliamentary form – that is, a form of government that requires a permanent relationship of confidence between the Parliament and the executive, but where the relationship between executive and legislative is governed by (some) constitutional rules aimed at limiting the parliamentary dynamics between the political parties and at ensuring a higher level of stability of the executive.3 3 On the concept of rationalised parliamentarism, see B Mirkine-Guetzevitch, Les Constitutions de l’Europe Nouvelle (Paris, Delagrave, 1928) 13, 22.

Failed Constitutional Reforms and Silent Constitutional Transformations  123 The anti-fascist political parties, which held a broad majority within the Constituent Assembly, sought, especially during the first months of its activity, to avoid the risks of ‘assembly government’ (ie, the instability of executives and their being held hostage by contingent and issue-based parliamentary majorities, as occurred during the French Third Republic). This rationalising aim was clearly indicated by the ‘Perassi resolution’, approved by the Second Subcommittee on 5 September 1946, which deemed ‘unfit to the condition of Italian society both the presidential and the directorial governments and opted in favour of the parliamentary system, to be ruled, anyway, through constitutional mechanisms able to guarantee the need for the stability of Executive and to avoid the degenerations of parliamentarism’.4 Indeed, this rationalisation of the parliamentary form of government was reflected only in a very limited sense in the constitutional text eventually approved by the Constituent Assembly at the end of the following year. The main political parties, following the rupture of the anti-fascist coalition in May 1947, preferred not to particularly empower those who, amongst them, would be future winners of political elections (first of all, the first general elections to be held in April 1948) and instead chose to rely more upon themselves and political dynamics, rather than on institutional mechanisms, to strengthen and stabilise the executive.5 In other words, the parties that would have lost the 1948 election obtained a kind of ‘insurance’, as they were granted the right to place significant hurdles in the path of the executive’s activity and, concurrently, to be involved in any case in parliamentary law-making (also thanks to the secret ballot, which, notwithstanding the silence of the Constitution, was maintained as the general rule for votes to be held in both Houses of Parliament). On these bases, the Italian Constitution devises a parliamentary form of government, as it requires that ‘the Government must receive the confidence of both Houses of Parliament’, which is accompanied by a very limited number of mechanisms of rationalisation. In particular, the proposal to introduce a so-called ‘constructive motion of no confidence’ was rejected (although it was later inserted into the German and Spanish Constitutions, among others) and the main provisions aimed at strengthening the executive comprise solely the requirement of an initial and collegial motion of confidence, by roll call, and some procedural requirements for submitting and voting for a motion of no confidence.6 Furthermore, the internal relations between the essential bodies that constitute the executive (the President of the Council, the Council of Ministers, and the Ministers) are regulated in rather vague terms by Article 95 of the Constitution Three distinct and conflicting principles are simultaneously recognised: the dominance of the premier (‘The President of the Council conducts and holds responsibility for the general policy of the Government’); the collegial principle (‘The Ministers are collectively responsible for the acts of the Council of Ministers’); and the full control of each minister with respect to

4 La Costituzione della Repubblica nei lavori preparatori della Assemblea Costituente, vol VII (Rome, Camera dei deputati, 1970) 944. The Perassi resolution was approved, with 22 votes in favour and six abstentions. 5 On both these reasons, see G Amato, ‘Constitution’ in E Jones and G Pasquino (eds), The Oxford Handbook on Italian Politics (Oxford, Oxford University Press, 2015) 71 ff, 78. 6 Article 94 of the Constitution. See M Olivetti, La questione di fiducia nel sistema parlamentare italiano (Milan, Giuffrè, 1996).

124  Nicola Lupo his or her own area of responsibility (‘The Ministers are individually responsible for the acts of their own ministries’).7 The authors of the Italian Constitution were rather conscious of this ambiguity. Consequently, they left the task of actually determining the institutional balance within the executive to an ‘ad hoc’ piece of legislation. According to Article 95(4) of the Constitution: ‘The law establishes the organisation of the Presidency of the Council, as well as the number, competence and organisation of the ministries’. It is not a coincidence that it took 40 years for this piece of legislation to be put in place (Law no 400/1988) (see section IV below). The weak rationalisation of the Italian form of government helps to explain why other drivers such as the electoral system (see section V below) and the European integration process (see section VI below) have acquired huge importance within the Italian constitutional evolution. In the absence of strong and strict constitutional mechanisms, the main institutional constraints were represented by the electoral rules. Different electoral rules, also thanks to their effects on the party system, imply different and even diverging ways of functioning for the parliamentary form of government. The so-called ‘fait majoritaire’ is in fact capable of conditioning, among other things, the power of appointment of the President of the Council; the power of dissolution of the two Houses conferred to the President of the Republic; the confidence relationship between the executive and Parliament; and, more generally, the place to be assigned to counter-majoritarian institutions. Therefore, throughout the Italian constitutional evolution, the system for electing both Houses was capable of either, via the proportional system, giving free rein to political parties or else, via systems based on majoritarian principles or providing for a majority bonus (by far the strongest of the electoral mechanisms aimed at ensuring a parliamentary majority), encouraging and even determining changes both in the party system and in the institutional dynamics. Although the Constituent Assembly took for granted the option of a proportional electoral system, it prudently chose not to inscribe it into the text of the Constitution so as not to bind the future legislative options.8 This choice – common to other constitutions approved in the same timespan9 – revealed itself to be decisive for Italian history, as it determined that the electoral rules needed to be defined through ordinary legislation, without the need for any constitutional amendment to be approved. In fact, as will be remarked (see section V below), the main turning points between the different phases of the Italian Republican constitutional evolution were characterised by some (almost by definition controversial) changes to the electoral law.

7 PA Capotosti, ‘Governo’ in XV Enciclopedia giuridica (Rome, Treccani, 1989 ) 5 f (observing that Art 95 Const. recognises, as founding principles for the internal organisation of the Executive, at the same time, Kanzlerprinzip, Kollegialprinzip and Ressortprinzip). 8 E Bettinelli, All’origine della democrazia dei partiti. La formazione del nuovo ordinamento elettorale nel periodo costituente (1944–1948) (Milan, Comunità, 1982) 379 f. 9 A comparative picture can be found in G Delledonne, ‘Constitutional Courts Dealing with Electoral Laws: Comparative Remarks on Italy and Hungary’ (2019) 2 DPCE Online 1539, 1543 (according to whom ‘16 out of 28 Member States of the European Union have some form of constitutionalisation of the electoral system’). See also L Seurot, ‘Faut-il constitutionnaliser le mode de scrutiny aux élections législatives’ (2015) 103 Revue française de Droit constitutionnel 657.

Failed Constitutional Reforms and Silent Constitutional Transformations  125

III.  Attempts to Reform the Form of Government of the Italian Constitution in the Last 35 Years While the electoral legislation has changed quite often throughout Italian Republican history, the constitutional provisions regarding the parliamentary form of government have remained exactly the same for more than 70 years.10 Indeed, initiatives aimed at reforming the second part of the Constitution, dedicated to the organisation of public powers, have officially kicked off several times in the last 35 years, always with the aim of ensuring a higher degree of stability to the executive and fully developing the rationalising principles outlined by the above-mentioned ‘Perassi resolution’ within the Constituent Assembly’s first phase of activity. Since 1983, at least five constitutional reforms have been drafted, usually on the basis of preliminary work conducted by ‘ad hoc’ parliamentary bicameral committees. Three of them (started in 1983, 1992 and 1997), established on the basis of an initially broad consensus between the main political parties, lost support along the way and did not complete their parliamentary path. Conversely, two of these constitutional reform proposals (started in 2003 and 2014), which were supported from the outset only by the executive and its parliamentary majority, managed to be approved by the two Houses, according to the special procedure designed by Article 138 of the Constitution This procedure requires the same text to be approved twice by each of the two Houses, with an interval of at least three months, and by a special majority in the second vote. If this majority is, in both Houses, higher than two-thirds of the members, then the text will be promulgated and will enter into force. If the majority is lower, but in any case higher than 50 per cent +1 of the members, then it will be possible for parliamentary minorities (one-fifth of the members of either the Chamber or the Senate), for 500,000 citizens or for five Regional Councils, within the following three months, to request a constitutional referendum (if no one requests the referendum, the text will be deemed approved). In two cases, constitutional reforms in relation to the form of government, despite having completed this rather complex parliamentary path and having been approved by majorities comprising between 50 per cent +1 and two-thirds of members, were then rejected by the citizens through constitutional referendums. This first happened in June 2006, when a revision of the entire second part of the Constitution, proposed by the Berlusconi government and aimed at establishing a sort of ‘premierato’, with a prime minister appointed on the basis of the electoral results and allowed to request the dissolution of the Parliament, was rejected by the citizens (61.3 per cent voted ‘no’ based on a turnout of 52.5 per cent of voters). This happened for a second time in December 2016, when a revision of the symmetrical bicameralism, proposed by the Renzi government, which would have indirectly strengthened the executive as a result of its dependence on the confidence of only one House, namely the Chamber of Deputies (while the Senate would have been elected only indirectly and completely excluded from the confidence relationship), was also rejected (59.1 per cent

10 For a rereading on the occasion of the seventieth anniversary of the Italian Constitution, see N Lupo, ‘Il Governo italiano’ (2018) 2 Giurisprudenza costituzionale 915.

126  Nicola Lupo voted ‘no’ based on a turnout of 65.5 per cent).11 In Italian constitutional history, only one constitutional referendum has had a positive outcome, in October 2001, on a reform of the provisions regarding regional and local autonomies (64.2 per cent voted in favour based on a turnout of 34.1 per cent). These two rejected referendums clearly demonstrate the significant difficulty faced by any constitutional reform addressing the Italian form of government. Especially in the final referendum, veto powers could easily ally with one another and defeat almost any attempt of constitutional reform (and with it the Renzi government), especially regarding wide and controversial issues such as – almost by definition – the form of government and the symmetrical bicameralism.

IV.  The Silent Transformation of Executive–Legislative Relations and its Causes The failure of many constitutional reforms aimed at strengthening the executive does not mean that the dynamics of the Italian form of government and the constitutional conventions that rule them have remained exactly the same since the entry into force of the Constitution. Indeed, the evolution of the form of government without the approval of a constitutional amendment is not a completely new phenomenon for Italian constitutional history.12 During the Albertine Statute (1848–1922), the form of government also evolved very significantly and moved away from the letter of the Constitution in the absence of a formal amendment. This element of continuity is particularly telling, as the Albertine Statute, conceded (octroyè) by Charles Albert of Savoy, King of Sardinia and Piedmont, in 1848, was considered a ‘flexible’ constitution, ie, not hierarchically superior to ordinary legislation, as is the case for ‘rigid’ constitutions, such as the Republican one, which entered into force a century later.13 The Albertine Statute in fact stated that the executive power was vested in the king alone (Article 5), thereby shaping a constitutional monarchy with a division of powers system. Like many constitutions conceded in continental Europe at the beginning of the nineteenth century, the Albertine Statute foresaw a constitutional monarchy, designing a form of government usually called a ‘constitutional pure system’. However, soon after its entry into force, the influence of the elected Chamber of Deputies and the autonomy of the President of the Council of Ministers transformed the

11 On this reform, see P Passaglia (ed), ‘The 2016 Italian Constitutional Referendum: Origins, Stakes, Outcome’ in (2017) Italian Law Journal, special issue; N Lupo, ‘On the Failed Constitutional Reform of the Italian Senate’ (2019) 39(2) DPCE Online 1595. For a comparative view, see R Albert, A Baraggia and C Fasone (eds), Constitutional Reform of National Legislatures: Bicameralism under Pressure (Cheltenham. Edward Elgar, 2019). 12 It is therefore possible to apply the concept of ‘quasi-constitutional amendments’: see R Albert, ‘Quasi-constitutional Amendments’ (2017) 65 Buffalo Law Review 739 f. See also N Lupo, ‘Two Examples of “Quasi-constitutional Amendments” from the Italian Constitutional Evolution: A Response to Richard Albert’ (2017) 65 Buffalo Law Review 1039 f. 13 The distinction between rigid and flexible constitutions is elaborated on in J Bryce, Constitutions (New York, Oxford University Press, 1901) 7 ff.

Failed Constitutional Reforms and Silent Constitutional Transformations  127 form of government, which gradually evolved towards a quasi-parliamentary and then a parliamentary system. This change happened without any formal amendment to the Albertine Statute, but mainly due to the influence of parliamentary rules and practices. Consequently, the executives in charge during the Albertine Statute were still appointed by the king, but they also needed, probably first and foremost, the confidence of the elected Chamber of Deputies.14 In a similar fashion to what had happened a couple of centuries earlier, during the evolution of the British form of government, the king stopped presiding over the executive’s meetings, thereby granting a special role to the emerging figure of the President of the Council, while simultaneously opening the space for deriving the executive’s legitimacy from the confidence of the (elected) Parliament. Therefore, the influence of the elected Chamber of Deputies and the autonomy of the President of the Council changed the form of government, which gradually evolved towards parliamentarism or – as some authors qualified it – pseudo-parliamentarism (as the executive continued to also need some kind of confidence on the part of the king, a feature that was then used by Mussolini in his rise to power).15 The 1948 Republican Constitution is, instead, a rigid Constitution, which requires a heavier procedure to be amended (see section III above) and is assisted by a system of constitutional adjudication. Consequently, it would be extremely difficult to even conceive of a similar evolution. However, also in view of the rather wide and open constitutional provisions regarding the form of government approved by the Constituent Assembly (see section II above), the concrete functioning and the actual balance of executive–legislative relations have been deeply influenced by many factors. For a number of years, political parties have played the most prominent role, using and adapting the institutions for their own ends. This explains why the Italian executive, at least until the 1980s, has often been described as weak and sometimes even non-existent.16 However, things started to change in the 1980s, when for the first time some executives were led by figures (such as Giovanni Spadolini and Bettino Craxi) who were not members of the Christian Democratic Party (which still held a relative majority of parliamentary seats) and who therefore needed to be supported, in their coordinating activity, by some institutional and not uniquely political mechanisms. In other words, the strength and unity of governmental political direction for the first 40 years of the Republic were entirely left up to party politics, without any legal or institutional mechanisms capable of pursuing these aims. Only when executives were led by Presidents of the Council who were not representatives of the Christian Democratic Party, but who were the leaders of minor parties of the majority coalition, was a different approach taken: the new tendency was to first strengthen the collegial body and sometimes, wherever possible, the role of the President of the Council too. Not surprisingly, only in 1988 was the law organising the President of 14 See C Ghisalberti, Storia costituzionale d’Italia (1848–1994) (Rome-Bari, Laterza, 2015). 15 The reference is to G Maranini, Storia del potere in Italia (1848–1967) (Florence, Vallecchi 1967) 25 ff (reading it as a synonym for ‘assemblearism’). 16 PA Allum, Italy: Republic without Government? (New York, Norton, 1973) 111 ff; G di Palma, Surviving without Governing: The Italian Parties in Parliament (Berkeley, University of California Press, 1977) 11 ff; S Cassese, ‘Is There a Government in Italy? Politics and Administration at the Top’ in R Rose and E Suleiman (eds), Presidents and Prime Ministers (Washington DC, American Enterprise, 1980) 171 ff; and J la Palombara, Democracy, Italian Style (New Haven, Yale University Press, 1987) 19 ff.

128  Nicola Lupo the Council approved (Law no 400), eventually implementing the terms of constitutional provision of Article 95(4).17 More recently, the transformation of the political system has required further adaptations to the institutions and the form of government. Given the repeated failure of constitutional amendments, two evolving drivers, as anticipated, determined some kind of strengthening of the executive and of its leader, the President of the Council of Ministers. On the one hand, a significant driver was the electoral law, which has been rewritten – by abrogative referendums, the Parliament or the Constitutional Court – seven times within the same timeframe, evolving, after 45 years of the proportional system, into a mainly majoritarian mechanism, and then into systems that provided a kind of majority bonus for the winning party or coalition of parties, to eventually adopt, in 2017, a mainly proportional system. On the other hand, a significant driver was the effect of Italy’s membership of the EU, which took place, at least for the first 40 years, without amending the Constitution, but which nevertheless deeply transformed the Italian form of government, changing ordinary legislation, the Chamber’s and Senate’s rules of procedure, and parliamentary practice.

V.  The Changes in Electoral Legislation A.  The Proportional Phase and its End in 1993 As already noted above, Italy’s electoral legislation has been changed frequently over the last 30 years. During the 45 years preceding this (1946–1991), it was instead rather stable, providing a proportional system. However, it must be recalled that the first change to the proportional electoral legislation originally approved – via ordinary legislation – by the Constituent Assembly occurred quite early on in 1953. At that time, a change in the electoral system for the Chamber of Deputies into a majoritarian electoral system (called ‘swindle law’, ‘legge truffa’) was approved after a long and tough parliamentary battle. However, in the following elections, which were held during that same year, the centrist coalition failed – by a small margin of about 40,600 votes – to reach the threshold necessary to obtain the majority bonus. Consequently, the new law was soon repealed. Therefore, for the next four decades, the proportional rule and culture prevailed, in part as a means of integrating the opposition parties within the parliamentary dynamics and then – first with the socialists and then the communists – even allowing their inclusion in the majority supporting the executive. This long ‘proportional’ phase of the Italian Republic ended in 1993 when, together with a deep transformation of the party system, proportional rule was abandoned – following two abrogative referendums – in favour of a mainly majoritarian electoral system. There was indeed a movement that began outside the main political parties and derived from civil society, which initially proposed an abrogative referendum aimed at abolishing the system of multiple-preference voting (amongst the candidates appearing in the same party list) at the elections for the Chamber of Deputies. The referendum, which passed the admissibility check of the Constitutional Court and was then approved by the citizens in 17 On Law no 400/1988, see the proceedings of the conference held at LUISS University on the occasion of its fortieth birthday (in press).

Failed Constitutional Reforms and Silent Constitutional Transformations  129 1991, suppressed one of the traditional institutional supports of factional politics within the main parties,18 which was often considered a tool for political exchange and clientelist practice (and even a mechanism to orient and possibly move and control packages of votes).19 Less surprising, although more deeply affecting for the institutional system, was the outcome of a second abrogative referendum proposed by the same movement and held in 1993, this time on the electoral law for the Senate. Through a targeted selective repeal of the legislation in force, the referendum abolished the 65 per cent threshold provided by the electoral law, transforming it into a mainly majoritarian system, assigning 75 per cent of the seats according to a first-past-the-post rule in uninominal constituencies and the remaining 25 per cent of the seats following a proportional criterion. The Parliament also decided to adopt the same percentages for the Chamber of Deputies (although assigning the 25 per cent proportional quota of seats based on the votes for lists expressed on a second ballot) and therefore, soon after the outcome of the referendum, approved a new electoral law called ‘Mattarellum’ (as the first promoter was Sergio Mattarella, at that time a Christian Democrat Member of Parliament (MP)). Shortly after the approval of the new majoritarian electoral law, Oscar Luigi Scalfaro, the President of the Republic, also decided to dissolve the Parliament, one-third of which was composed of MPs on trial, in order to make the new electoral law applicable in the elections held in 1994. The new majoritarian electoral law, which was applied in the elections of 1994, 1996 and 2001, ensured the emergence and consolidation of a bipolar pattern of electoral competition based on two dominant pre-electoral ‘catch-all coalitions’, co-existing with a high level of party fragmentation (notwithstanding the 4 per cent threshold for the accession to proportional seats in the Chamber of Deputies).20 However, during this phase, Italy never became a two-party system, and the coalitions revealed themselves to be fit to win, but not to govern. In fact, after each election, both the losing and the winning coalitions struggled to survive. Usually, the former disappeared shortly after the electoral defeat, being unable to identify a common alternative strategy or to declare a unique opposition leader, while the latter was obliged to stay together in order to form the executive, but soon showed its fragmented and conflicting nature, meaning that it was unable to ensure a constant parliamentary majority supporting the executive.21

B.  The Contested Electoral Reform of 2005 and the Role Played by the Constitutional Court The electoral system designed in 1993 was completely changed in 2005 when a new electoral law was approved, providing a majority bonus (also called majority prize) (although as part of a mechanism conceived according to a proportional basis). Shortly before 18 See C Fusaro, ‘Party System Developments and Electoral Legislation in Italy (1948–2009)’ (2009) 1(1) Bulletin of Italian Politics 49 ff. 19 See M Cotta and L Verzichelli, Political Institutions in Italy (Oxford, Oxford University Press, 2007) 78 ff. 20 cf R D’Alimonte, ‘Italy: A Case of Fragmented Bipolarism’ in M Gallagher and P Mitchell (eds), The Politics of Electoral Systems (New York, Oxford University Press, 2006) 253 ff; and A Chiaramonte, ‘The Unfinished Story of Electoral Reforms in Italy’ (2015) 7(1) Contemporary Italian Politics 10 ff. 21 V Lippolis and G Pitruzzella, Il bipolarismo conflittuale. Il regime politico della seconda Repubblica (Rubbettino, Soveria Mannelli, 2007).

130  Nicola Lupo the new elections, which would have taken place in the spring of 2006, the centre-right majority, without the support of the opposition, decided to change the electoral system, clearly intending to avoid or at least to reduce the magnitude of its defeat as forecast by the polls. Law no 270/2005 (usually called ‘Porcellum’, from the Italian ‘porcata’, meaning ‘unfair change’ because, as recognised by one of its authors, its aim was to avoid the victory of the centre-left coalition) suppressed the uninominal constituencies and designed an electoral system that has been correctly labelled as a ‘majority-assuring proportional system’.22 The core of the system – although built on a proportional basis – was the allotment, within the Chamber of Deputies, of a majority bonus: the winning party or coalition (ie, the one receiving the relative majority of votes nationwide) received no fewer than 340 seats (out of 630), notwithstanding how many votes it obtained. The seats were assigned according to the order provided by fixed and long lists of candidates presented in each electoral district (with the possibility of multiple candidacies for a single person who could potentially be a candidate in all the districts). Coalitions had to agree on some kind of programme (which was generally kept semi-clandestine) and to designate a leader (supposedly, the future President of the Council of Ministers in the event of success, although the law stated that the President of the Republic’s powers of nomination were not infringed by this provision). In the Senate, in order not to violate the constitutional provision according to which the Upper House must be elected ‘on a regional basis’23 – which was also informally recalled by the President of the Republic during the parliamentary examination of the law – the same law assigned a series of majority bonuses at the regional level, ie, to the winning list or coalition in each region. Therefore, the outcome, with 17 majority bonuses, was a sort of ‘lottery’.24 This system, although widely criticised and notwithstanding several reform proposals (and a failed abrogative referendum in 2009) was applied in 2006, 2008 and 2013. The 2013 elections, which gave a non-decisive result, led for the first time to a stalemate in the aftermath of a political election, partially because of the appearance of the new Five Star Movement, which obtained around one-third of the votes and impeded the establishment of a majority in both Houses. The stalemate strengthened the criticisms of this electoral law.25 In this very peculiar context, in May 2013, the Court of Cassation decided to raise a question of constitutionality of Law no 270/2005. Indeed, this question was previously deemed inadmissible by many other judges as it was not considered relevant for deciding judicial controversies raised by voters, given the reserve to the Parliament of any electoral controversy provided by Article 66 of the Constitution.26

22 See Fusaro (n 18) 58, relying on a category defined by M Shugart and M P Wattenberg (eds), Mixed-Member Electoral Systems: The Best of Both Worlds? (Oxford, Oxford University Press, 2001). 23 Article 57(1) of the Constitution. 24 R D’Alimonte, ‘Il nuovo sistema elettorale. Dal collegio uninominale al premio di maggioranza’ in A Chiaramonte, and R D’Alimonte (eds), Proporzionale ma non solo. Le elezioni politiche del 2006 (Bologna, Il Mulino 2007) 51 ff. 25 R D’Alimonte, ‘The Italian Elections of February 2013: The End of the Second Republic?’ (2013) 5(2) Contemporary Italian Politics 113. 26 See G Piccirilli, ‘Maintaining a 4% Electoral Threshold for European Elections, in Order to Clarify Access to Constitutional Justice in Electoral Matters’ (2016) 12 European Constitutional Law Review 164, 169.

Failed Constitutional Reforms and Silent Constitutional Transformations  131 The question was upheld as well-founded by the Constitutional Court (judgment 1/2014), which overcame some procedural difficulties that could have blocked the review by relying on, among other things, the argument that otherwise the constitutionality of the electoral law, which was labelled as ‘essential for the proper operation of a representative democratic system’, could not have been raised elsewhere and that this law would therefore be ‘subtracted from constitutional review’. As a matter of substance, first, the majority bonus for the Chamber provided by the legislation did not pass the proportionality test,27 as it attributed the majority bonus without requiring ‘the list (or coalition of lists) with a relative majority of votes to achieve a minimum threshold of votes’. As such, it excessively limited ‘the representative function of the Chamber of Deputies, as well as the equal status of each individual right to vote, in such a manner as profoundly to alter the composition of the democratic representative bodies on which the entire architecture of the prevailing constitutional order is based’. Second, the electoral legislation applicable to the Senate was also struck down by the same judgment on the grounds that the majority bonus was irrational per se and was incapable of pursuing its own aim. Third, the Constitutional Court quashed the system of list voting on the grounds that voters were unable to express any preferences and that the lists were so large that the identities of many candidates were unknown to voters. Stimulated by the Constitutional Court’s fundamental decision, the Parliament, upon the initiative of the Renzi government, approved a new electoral law, imagined in strict coordination with the already recalled constitutional reform, aimed at transforming the Senate into an indirectly elected House that was representative of territorial institutions and deprived of any confidence relationship with the executive. The new electoral Law no 52/2015 (referred to as ‘Italicum’, as it had no similar references in other countries), applicable (at least in theory) since 1 July 2016, therefore referred only to the Chamber of Deputies, providing for a two-round majority-assuring electoral system. Thanks to a majority bonus, it aimed to guarantee an absolute majority (of 340 seats) to the party that obtained at least 40 per cent of votes in the first round or to the party winning the second round if none secured 40 per cent in the first round.28 However, after the rejection – through the referendum held on 4 December 2016 (see section III above) – of the constitutional reform, Law no 52/2015 was partially quashed by the Constitutional Court (judgment 35/2017) on the basis of the same principles and the same kind of scrutiny affirmed by the previous judgment. In particular, while the 40 per cent minimum threshold in the first round for obtaining the majority bonus was judged to be reasonable, the second round ballot was declared unconstitutional, as it had an effect of over-representation of a party that might have received few votes in the first round.29 27 For an account that stresses the importance of the scrutiny accomplished by this decision, see A Pin and E Longo, ‘Don’t Waste Your Vote (Again!). The Italian Constitutional Court’s Decision on Election Laws: An Episode of Strict Comparative Scrutiny’ (2015) ICON·S Working Paper – Conference Proceedings Series 1, no 10/2015. Available at: ssrn.com/abstract=2670634. 28 See R D’Alimonte, ‘The New Italian Electoral System: Majority-Assuring But Minority-Friendly’ (2015) 7(3) Contemporary Italian Politics 286. 29 See, among others, P Faraguna, ‘Do You Ever Have One of Those Days When Everything Seems Unconstitutional?: The Italian Constitutional Court Strikes Down the Electoral Law Once Again’ (2017) 13 European Constitutional Law Review 778; A Baraggia and LP Vanoni, ‘The Italian Electoral Law Saga: Judicial Activism or Judicial Subsidiarity?’ (2017) 2 STALS Research Paper; A Ciancio, ‘Electoral Laws, Judicial Review and the Principle of “Communicating Vessels”’ (2017), https://dirittifondamentali.it/2017/07/15/ electoral-laws-judicial-review-and-the-principle-of-communicating-vessels.

132  Nicola Lupo The other provision of Law no 52/2015 struck down by the Constitutional Court was the one allowing for the possibility of multi-elected candidates (the law permitting individuals to be a candidate in up to 10 constituencies) to choose the constituency in which to be elected after the completion of the electoral process. In order to avoid any loopholes in the remaining electoral legislation, to determine which seat the multi elected-candidate ultimately receives, the Court found and applied a mechanism already existing in the regulation in force: a random draw, to be held among the different constituencies that elected the same candidate. In the last sentence of the judgment, the Court referenced the outcome of the constitutional referendum and, given the persistence of symmetrical bicameralism in the Italian Constitution, asked for two electoral systems whose results would not jeopardise the appropriate functioning of the parliamentary form of government, thus not impeding the formation of homogeneous parliamentary majorities. On the basis of this last sentence, the Parliament approved, by a large majority, new electoral legislation (Law no 165/2017, the so-called ‘Rosatellum-bis’) precisely to avoid elections governed by two very different electoral systems, both directly resulting from judgments of the Constitutional Court (judgment 1/2014 for the Senate and judgment 35/2017 for the Chamber). Thus, for the first time in Italian history, the same kind of electoral system was provided for the two Houses in what could be called ‘a mixed system, with one vote’. More specifically, 63 per cent of the seats for both the Chamber and the Senate are now assigned according to a proportional system, with blocked (and short) parties, in regional or sub-regional pluri-member constituencies, while 37 per cent of the seats are instead assigned according to a first-past-the-post mechanism in single-member constituencies. The electoral system is open either to coalitions or to single lists, with different electoral thresholds: 10 per cent for coalitions and 3 per cent for lists (although 1 per cent suffices to make their votes useful for the coalition, if they are part of it). Pluri-candidatures are admitted, up to five, plus one in single-member constituencies, but a legislative criterion is determined for those elected to more than one constituency: first, the single-member constituency, then a pluri-member constituency (the one in which his or her party obtained fewer votes). No party can have more than 60 per cent of candidates of the same sex.30 The most discussed feature of the new law is the ‘one vote’ rule. This implies that voters are not allowed to vote in a dissociated way for a single-member candidate and for a list that is not connected to him or her. So, while in the case of a list, the vote is indeed unique, in the case of a coalition, the voter still has two votes: one for the singlemember candidate and one for any of the lists connected to him or her (but if the voter does not choose, his or her second vote will be split between these lists according to the same proportion the other voters have selected). The aim is to ensure consistency between the two parts of the mixed system and to avoid an outcome in which they give very different results.

30 See E Massetti and A Farinelli, ‘From the Porcellum to the Rosatellum: “Political Elite-Judicial Interaction” in the Italian Laboratory of Electoral Reforms’ (2019) 11(2) Contemporary Italian Politics 137.

Failed Constitutional Reforms and Silent Constitutional Transformations  133

VI.  The Influence of the EU As anticipated, another element must also be taken into consideration to define the executive–legislative balance and its variations: the influence that the EU exercises over the Italian form of government. In the case of this transformation too, there has been almost no constitutional amendment at its core. In Italy, in contrast to what has happened in many other EU Member States,31 the ratification (and execution) of the international treaties founding the European Communities, and all their subsequent reforms enacted from the 1950s up to the Lisbon Treaty, did not require any constitutional amendment and were incorporated into domestic law through ordinary pieces of legislation. The effect of national legislation giving way to EU law was essentially facilitated through constitutional interpretation. Both the legislator, in ratifying founding treaties, and the Constitutional Court, judging on the compliance of EU law with constitutional principles, relied on the general clause embedded in Article 11 of the Constitution regarding the openness of the international order and subsequent limitations of sovereignty. The choice not to amend the Constitution to include a ‘European clause’ referring to the Treaties signed since 1951 and to rely instead on the general clause embedded in Article 11 of the Constitution was originally determined by political reasons. In fact, due to the opposition of the communist and socialist parties, it was practically impossible to reach the majority of two-thirds of the members of each House required to amend the Constitution (as the referendum was not implemented in the Italian legal order until 1970).32 Thus, under the wide umbrella of Article 11 of the Constitution, Italy’s participation in the EU has essentially relied solely on legislative means, starting from the choice made when authorising the ratification of the first European treaties,33 and soon confirmed and refined by the Italian Constitutional Court. Even though it took some time to find a way to combine the dualist approach of the Italian legal order with the Court of Justice’s early affirmation of the primacy and direct effect of EU law,34 the Italian Constitutional Court never called for constitutional reform in order to participate in the integration process, instead affirming the possibility of proceeding by means of interpreting the Constitution in force.35 The same model was then followed for authorising the ratification of all further European treaty revisions. A bill was submitted by the executive and was approved, as quickly as possible, by a large parliamentary majority, which became even larger as the

31 See Fusaro (n 18) 223 (according to whom ‘Italy is the only European nation with a textual Constitution which has never been amended in order to allow the ratification of any European treaty’). For a wider comparative analysis, see the study commissioned by the European Parliament (PE 493.046) and conducted by L Besselink et al, National Constitutional Avenues for Further EU Integration (Brussels, European Parliament, 2014) 263 ff. 32 A Barbera, ‘Costituzione della Repubblica italiana’ in Enciclopedia del diritto. Annali, vol VII (Milan, Giuffrè, 2015) 263, 352; A Varsori, La Cenerentola d’Europa? L’Italia e l’integrazione europea dal 1947 ad oggi (Rubbettino, Soveria Mannelli, 2010) 146 ff. 33 Laws nos 766/1952 and 1203/1957. 34 M Cartabia, ‘The Italian Constitutional Court and the Relationship between the Italian Legal System and the European Union’ in AM Slaughter et al (eds), The European Court and National Courts: Doctrine and Jurisprudence: Legal Change in its Social Context (Oxford, Hart Publishing, 1998) 133–46. 35 V Barsotti, PG Carozza, M Cartabia and A Simoncini, Italian Constitutional Justice in Global Context (New York, Oxford University Press, 2016) 205 ff.

134  Nicola Lupo parties of the left gradually leaned more in favour of European integration. No referendum or prior check of compatibility with the Italian Constitution was thus required. This also happened with respect to the Lisbon Treaty and even more so because the Italian Parliament had been among the first to ratify the constitutional treaty three years earlier. This helps to explain why neither in the Senate (on 23 July 2008) nor in the Chamber of Deputies (31 July 2008) was a single negative or abstention vote cast on the bill authorising the ratification of the Lisbon Treaty.36 If there was no need for any constitutional amendment for the purposes of ratifying the constitutional treaty, this was evidently even more true of an instrument such as the Lisbon Treaty, which, at least formally, intended to downgrade the constitutional impact (as well as some of the constitutional rhetoric) of its immediate predecessor. There have indeed been specific references to the EU and to some of its institutions in some other constitutional amendments. Therefore, in Article 117 of the Constitution, regarding the allocation of the legislative function between state and region, a provision was inserted in 2001 that obliges both state and regional law to be in compliance not only with the Constitution, but also ‘with the constraints deriving from Community Law and international obligations’. In addition, in Article 97 of the Constitution, which contains the main principles that govern public administrations, a new initial provision has been added, according to which all public entities, ‘in accordance with European Union law, shall ensure balanced budgets and the sustainability of public debt’.37 In the constitutional reform proposals examined during the last 30 years, there was also an attempt to insert a new and more specific ‘European clause’, providing explicit counter-limits to the participation in the EU (on the basis of the case law of the Italian Constitutional Court) and a specific procedure for any further limitations on national sovereignty.38 The constitutional amendment on bicameralism proposed by the Renzi government would have touched upon relations with the EU too, although only regarding minor elements: assigning to the new Senate (composed of representatives of regions and municipalities) the role of evaluating the impact assessment of EU policies on territories, but still requiring the approval of ‘bicameral laws’ for authorising the ratification of European treaties.39 However, the absence of constitutional amendments aimed at adapting the Italian Constitution to the EU, as well as the fact that Italy was among the founders of the European Communities, could help to explain why this driver of transformation of the Italian form of

36 In the final vote on the bill authorising the ratification of the Lisbon Treaty, the Senate registered 286 votes in favour out of 286 members participating in the vote (out of the plenum of 321 members, as at that time there were seven life senators, plus the President). In the Chambers of Deputies, there were 551 votes in favour out of 551 voting members (plenum 629, plus the President). 37 See N Lupo and G Piccirilli, ‘Conclusions – “Silent” Constitutional Transformation: The Italian Way of Adapting to the European Union’ in N Lupo and G Piccirilli (eds), The Italian Parliament in the European Union (Oxford, Hart Publishing, 2017) 317, 323 f. 38 See art 114 of the draft constitutional amendment elaborated by the bicameral committee established in 1997. On the counter-limits doctrine, see, among many others, M Cartabia, Principi inviolabili e integrazione europea (Milan, Giuffrè, 1995); P Faraguna, Ai confini della costituzione. Principi supremi e identità costituzionale (Milan, Franco Angeli, 2015). 39 See L Gianniti, ‘The 2016 Attempted Reform of the Italian Senate in a European Perspective’ in Lupo and Piccirilli (eds) (n 37) 305 ff.

Failed Constitutional Reforms and Silent Constitutional Transformations  135 government has often been concealed and underestimated by the political actors and also often by scholars. Even the ordinary legislation approved in order to set the bodies and the procedures required by the participation of Italy to the EU (Law nos 183/1987, 86/1989, 11/2005 and 234/2012) opted for a low profile and cautious intervention, defining and redefining these instruments, seeking to adapt and strengthen parliamentary powers and prerogatives regarding EU affairs, but at the same time leaving the executive with enough leeway and a certain degree of autonomy in order conduct its own negotiating activity in Brussels. The first aim has been indeed made more difficult to achieve because of the symmetrical bicameralism and especially the adoption of different rules of procedures by the Chamber and the Senate (also often according to different timeframes).40 The second aim has been complicated by the rather weak internal cohesion of the Italian executive and by the long-lasting contrasts between the Minister of Foreign Affairs and the Presidency of the Council (where a specific minister is normally in charge of EU policies) – not to mention the crucial role of the Minister of Economy and Finance – for the coordination of these activities.41 In any event, it is clear that because of the process of European integration, the Italian form of government is now extremely different from that originally conceived by the Constituent Assembly and the ‘Perassi resolution’. The EU and its institutions – especially the Council of the European Union and the European Council – offer an important means of strengthening the executive and, within them, the President of the Council.42 By meeting regularly and jointly defining some important policies, the national governments and their leaders find a way of mutually identifying a fundamental role for themselves in setting/implementing the agenda, as well as often a rather easy escape from (still mainly national) political responsibility. Therefore, the Italian form of government, like that of any EU Member State, cannot be fully understood and defined without also referring to the EU institutional system, which implies a mutual influence and even a sort of competition between Member States’ institutions. Indeed, this logic is recognised by Article 10 TEU, according to which the (representative) democracy of the EU is founded not only on the channel of the European Parliament, directly elected by the citizens since 1979, but also relies on another channel, constituted by the national forms of government, when it recalls that the European Council and the Council are composed of representatives of national governments who are ‘democratically accountable either to their national Parliaments, or to their citizens’.

40 For further references, see also C Fasone, ‘Gli effetti del Trattato di Lisbona sulla funzione di controllo parlamentare’ (2011) 2 Rivista italiana di diritto pubblico comunitario 361; M Romaniello, ‘The Italian Symmetrical Bicameral System in EU Affairs’ in Lupo and Piccirilli (eds) (n 37) 185–304. On the recent reform of the Senate’s rules of procedure, see N Lupo, ‘La riforma del 20 dicembre 2017 del (solo) regolamento del Senato, nella faticosa ricerca di un’omogeneità regolamentare tra i due rami del Parlamento’ (2017) 197–98 Studi parlamentari e di politica costituzionale 23. 41 See R Ibrido, ‘Formulating and Implementing EU Law and Policies: “Ascending” and “Descending” Phases and Beyond’ in Lupo and Piccirilli (eds) (n 37) 55–66. 42 See, among others, P Caretti, ‘I riflessi dell’ordinamento comunitario nella forma di governo italiana’ (1981) 2 Quaderni costituzionali 311 ff, 316; S Bartole, La Repubblica italiana e la sua forma di governo (Modena, Mucchi, 2018) 33 ff; R Ibrido and N Lupo (eds), Dinamiche della forma di governo, tra Unione europea e Stati membri (Bologna, Il Mulino, 2018).

136  Nicola Lupo This explains why a failure in a single form of government of one of the Member States – all ruled by parliamentary or semi-presidential systems, with the only exception of Cyprus, where presidentialism is in place – has repercussions for EU democracy as a whole and the development of the European integration process.

VII.  Conclusion: A Still-Incomplete, Unbalanced and Unstable Evolution? As has been noted above, the failure of all the constitutional reforms of the executive– legislative relationship does not mean that the rules and dynamics of the Italian form of government have remained the same since 1948. These rules and dynamics have been deeply influenced by two factors: on the one hand, by the electoral law, which has been rewritten – by the Parliament, but also in the aftermath of abrogative referendums and judgments by the Constitutional Court, seven times in the last 30 years – and, on the other hand, by the effects of Italy’s membership of the EU. The result of both of these silent constitutional transformations has been a strengthening of the executive and its leader, the President of the Council of Ministers. However, these transformations have given rise to an incomplete and to a certain extent imbalanced evolution, as this strengthening took place without formally increasing the enumerated constitutional powers of either the executive or its President, but only through a more intense usage of their original toolkit. In other words, the increased role of the executive took place mainly through a de facto process that was only partially recognised at the level of ordinary legislation, without an overall approach and without the necessary constitutional counterbalances in favour of the Parliament and of the minorities. Moreover, this also means that the process of presidentialisation/personalisation of the executive still appears to be unstable and easily reversible when called upon to operate in a different political setting. The fact that this process was extremely clear and defined at the level of media politics (and was also consistent with other more structural and general drivers, including the electoral legislation and the influence of the EU institutional dynamics), but did not manage to achieve any amendment to the Constitution indicates its very unstable and precarious nature. The first year of experience of the Conte government, which was formed after the 2018 elections, in which the President of the Council is accompanied by two Vice-Presidents, namely the leaders of the two parties that compose its majority, has precisely demonstrated that the executive’s presidentialisation/ personalisation process is far from complete and is still the object of acute and intense political and institutional struggles. Conversely, the fact that in August–September 2019 the same President of the Council managed to survive the attack brought by the League and its leader, Salvini, leading a new executive with a different parliamentary majority (and a different approach towards the European Union), has shown that the “European role” of the President of the Council should not be underestimated.

8 Short-Lived Reparliamentarisation? A Year of Efforts to ‘Take Back Control’ from the Executive in the Brexit House of Commons KATHRYN WRIGHT*

I. Introduction The Leave campaign in the UK’s June 2016 referendum on European Union (EU) membership famously exhorted the UK – notionally through its Parliament – to ‘take back control’ from the EU. Subsequently, the slogan was invoked by Members of Parliament (MPs) in their efforts to scrutinise the UK government’s Brexit strategy in the House of Commons.1 To focus its scope, this chapter adopts as its timeframe the period from the introduction of the draft Withdrawal Agreement and Political Declaration on the Future Relationship2 in December 2018 to the dissolution of Parliament in November 2019 prior to the UK General Election a month later. While the House of Lords has also played a significant constitutional and practical role in checking the executive in the context of Brexit,3 this chapter concentrates on the role of MPs, particularly backbenchers,4 in the House of Commons. Echoing the themes of this volume, de-parliamentarisation holds that governments are better placed to be active players in EU decision-making and that legislatures may have insufficient control over the actions of the executive. In the EU literature, reparliamentarisation refers to post-Lisbon Treaty rights and opportunities for national parliaments in EU politics, including channels for interparliamentary coordination.5 This invites * With thanks to Nicolas Rennuy and Diane Fromage for their helpful comments on earlier versions of this chapter. Any errors remain my own. 1 For example, see the debates on 1 April 2019 regarding taking control of the parliamentary agenda to hold the second round of indicative votes: HC Deb 1 April 2019, vol 657, cols 804, 807, particularly the interventions of Pete Wishart (Scottish National Party), Angela Eagle (Labour) and Edward Leigh (Conservative). 2 https://www.gov.uk/government/publications/withdrawal-agreement-and-political-declaration. 3 J Smith, ‘Fighting to “Take Back Control”: The House of Lords and Brexit’ in T Christiansen and D Fromage (eds), Brexit and Democracy: The Role of Parliaments in the UK and the EU (London, Palgrave Macmillan, 2019) 81–103. 4 In the UK ‘backbencher’ refers to an MP who is not a member of the government or of the shadow cabinet of the main opposition party. 5 See, eg, J Pollak and P Slominski, ‘EU Parliaments after the Treaty of Lisbon: Towards a Parliamentary Field’ in B Crum and JE Fossum (eds), Practices of Inter-parliamentary Coordination in International Politics: The European Union and Beyond (Colchester, ECPR Press, 2014) 144–45.

138  Kathryn Wright consideration of reparliamentarisation in a new, post-EU membership context where competences are transferred from the EU to the national level. Specifically in the UK, it is not yet clear what effect this repatriation will have on the overall balance of powers or on the devolved administrations in Scotland, Wales and Northern Ireland. In the meantime, the interplay between executive and legislature has come into sharp relief during the withdrawal process itself. The UK’s unwritten constitution rests upon the doctrine of parliamentary sovereignty. The central tenet of this is that Parliament can make or unmake any law.6 Ultimately it has the power to remove the government from office via a vote of no confidence. On the face of it, this puts Parliament in a strong (indeed, pre-eminent) position. However, the royal prerogative (exercised by ministers as the representative of the Crown in Parliament) and constitutional conventions on the role of government in Parliament restrict this sovereignty. In the context of Brexit, the longstanding debate on conceptions of the role of government was re-ignited by suggestions that the government could veto legislation it did not support (for example, legislation preventing the UK from leaving the EU without an agreement) by advising the Queen to withhold Royal Assent or, as eventually happened in September 2019, to ‘prorogue’ Parliament (ie, end the parliamentary session).7 This chapter focuses on three limitations to parliamentary power in the Brexit context, alongside the ultimate limitation of prorogation. Rather than analysing legislative amendments to government bills,8 it assesses the use and effectiveness of other parliamentary mechanisms by MPs to scrutinise, curtail and try to steer the UK government’s Brexit agenda in response to these restrictions. Notably, these mechanisms were employed across traditional party-political lines. The first limitation is the executive’s prerogative power, particularly over Treaties and international relations. This is discussed in relation to arguments over when (extensions to the Article 50(3) of the Treaty on European Union (TEU) negotiating period), how (options for the future relationship with the EU) and indeed whether (triggering/ revoking Article 50 TEU) Brexit should happen. Cross-party private members’ bills by MPs who are not members of the government, leading to the EU (Withdrawal) Act 2019, challenged the government’s power in this area. The second limitation is agenda-setting and the control of the parliamentary timetable. Under the standing orders of the House of

6 AV Dicey, An Introduction to the Study of the Law of the Constitution (London, Macmillan and Co, 1885). 7 For a flavour of the debate on ‘representative government’ and ‘responsible government’, see, eg, R Craig, ‘Executive Versus Legislature in the UK: A Response to Mark Elliott and Tom Poole’ UK Constitutional Law Association Blog, 5 April 2019, https://ukconstitutionallaw.org/2019/04/05/robert-craig-executive-versus-legislature-in-theuk-a-response-to-mark-elliott-and-tom-poole; M Elliott, ‘Brexit, the Executive and Parliament: A Response to John Finnis’ Public Law for Everyone Blog, 2 April 2019, https://publiclawforeveryone.com/2019/04/02/brexitthe-executive-and-parliament-a-response-to-john-finnis; S Fowles, ‘Can the Prime Minister Prorogue Parliament to Deliver a No Deal Brexit?’ UK Constitutional Association Law Blog, 10 June 2019, https://ukconstitutionallaw. org/2019/06/10/sam-fowles-can-the-prime-minister-prorogue-parliament-to-deliver-a-no-deal-brexit. 8 See, eg, M Russell, D Gover and K Wollter, ‘Does the Executive Dominate the Westminster Legislative Process? Six Reasons for Doubt’ (2016) 69(2) Parliamentary Affairs 286; M Russell and D Gover, Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law (Oxford, Oxford University Press, 2017); L Thompson and B Yong, ‘What Do We Mean by Parliamentary Scrutiny of Brexit? A View from the House of Commons’ and P Lynch, R Whitaker and A Cygan, ‘Brexit and the UK Parliament: Challenges and Opportunities’ in Christiansen and Fromage (n 3) on the EU (Notification of Withdrawal) Bill 2017 and the EU (Withdrawal) Bill 2018, respectively.

Short-Lived Reparliamentarisation?  139 Commons, government business takes precedence. Nonetheless, MPs attempted to wrest control of the agenda, for example, to hold indicative votes in order to find out which Brexit options might command majority support, or through amendments to government motions. The Speaker of the House of Commons played a decisive role in these efforts, as the Speaker determines which motions and amendments are selected for debate. The third limitation is the extension of ministers’ power to make secondary legislation under the EU (Withdrawal) Act 2018. Parliament has countered these powers through new statutory instrument scrutiny committees. Other important mechanisms, which are not considered in detail here, are Backbench Business Committee debates9 (such as the customs union debate in April 2018), humble addresses10 (used to access the government’s impact assessments and legal advice to Cabinet) and urgent questions to ministers.11 This chapter finds that through the creative use of parliamentary procedures, Commons backbenchers were successful in steering Brexit strategy to some extent. It is not clear whether this impact on the executive–legislative balance will pertain beyond the extraordinary circumstances of Brexit. First, procedures themselves have not formally changed. Second, the results of mobilising those procedures were not decisive. Finally, the results of the December 2019 General Election suggest that, in the UK, indications of reparliamentarisation were simply a function of a government lacking a majority. It does seem clear that the party-political system has suffered and that public trust in Westminster politics has been damaged. Paradoxically, the prospect of withdrawal from the EU increased the salience of EU affairs. Some MPs’ motivations were caught between vote-seeking behaviour and making a policy impact, depending on how their own constituencies voted in the 2016 referendum and in subsequent local and European Parliament elections. Meanwhile, there was greater public awareness of issues surrounding the UK’s relationship with the EU as a result of Brexit, but also a sense of ‘Groundhog Day’ fatigue as a resolution seemed elusive prior to the December 2019 General Election. In the longer perspective of executive–legislative relations in the 10 years since the Lisbon Treaty, the House of Commons had greater access to information which to an extent has allowed it to redress the balance vis-a-vis the executive. It did this by both mainstreaming12 and streamlining scrutiny of EU affairs. In terms of streamlining, the European Scrutiny Committee (ESC) had a central role in sifting the 1100 EU documents Parliament received each year, prioritising which of these should be subject to full scrutiny and subsidiarity checks. Meanwhile, scrutiny was mainstreamed through Commons select

9 The Backbench Business Committee has a limited number of days when it can schedule any subject for debate outside of the government’s control. MPs make an application for a topic to be considered. The Committee selects subjects based on topicality and timing, the importance of holding a debate, the number of MPs who are likely to take part and whether a debate has already happened or is likely to be arranged through other means. 10 A humble address is technically a message to the Queen from either House of Parliament. It can be used to call on a Secretary of State (who is a representative of the Crown in Parliament) to release government papers. As with other motions (proposals), it can be debated, amended and voted on. If agreed, humble addresses are understood to be binding on the House. 11 Where an urgent issue arises, an MP can apply to the Speaker of the House of Commons to ask a question of a government minister that same day. The request is granted if the Speaker is satisfied that the question is urgent and of public importance. A minister must attend the House of Commons Chamber to explain in person how the government is responding to the issue. 12 K Gattermann, A-L Högenauer and A Huff, ‘National Parliaments after Lisbon: Towards Mainstreaming of EU Affairs?’ OPAL Online Paper Series, 2013, www.opal-europe.org/tmp/Opal%20Online%20Paper/13.pdf.

140  Kathryn Wright committees responsible for different policy areas. In some instances, the ESC did this, drawing a particular document to the attention of the relevant select committee. On other occasions, EU law and policy came within the remit of a select committee’s inquiry into a particular topic, aided by the increased institutional capacity of policy specialists within select committees. These committees also publicly hold government ministers to account through evidence sessions. A 2013 ESC report13 called for rapporteurs to lead on EU issues within committees, and a more coordinated approach to the European Commission’s Work Programme to allow the House of Commons to engage more effectively and directly with the EU institutions at an earlier stage in the EU legislative process. Scrutiny mechanisms for the future are yet to be decided, but may continue from arrangements during the transition period. Where the ESC reports that new EU legislation raises a matter of ‘vital national interest’ and has consulted the relevant departmental select committee, a Commons debate must be held within 14 days.14 The rest of the chapter proceeds as follows. Section II sets out the relevance of the theoretical debate on de-parliamentarisation/reparliamentarisation to the UK context. Section III briefly sets out the UK Parliament’s role in Brexit, particularly the attempts to pass the draft Withdrawal Agreement and Political Declaration with the EU and the unlawful prorogation. Section IV examines the three limitations to parliamentary power identified above which shift the balance in favour of the executive, and the creative use of parliamentary mechanisms used in response. Section V concludes.

II.  From Passive to Active Legislature? The UK’s unwritten constitution rests upon the doctrine of parliamentary sovereignty. This theoretically means that Parliament can make or unmake any law.15 However, since the government, representing the Crown, sits in Parliament, a series of constitutional conventions limit its power versus the executive. Parliament’s ultimate power is to remove the government from office via a vote of no confidence.16 Despite this foundation of parliamentary sovereignty and the blunt sanction of the confidence motion, the UK’s model of parliamentary powers has traditionally been viewed as comparatively weak.17 The majority of legislation passed is at the initiative of the government, which gives the impression that Parliament is largely passive.

13 European Scrutiny Committee, Reforming the European Scrutiny System in the House of Commons (HC 2013–14, 109-I). 14 EU (Withdrawal Agreement) Act 2020, s 29. 15 Dicey (n 6). 16 Theresa May had successfully weathered two no-confidence motions over Brexit: an internal one as leader of the Conservative Party in December 2018 and as the leader of the government in the face of a Labour motion on 16 January 2019 immediately after the Withdrawal Agreement was rejected for the first time. 17 P Norton, ‘Parliaments: A Framework for Analysis’ (1990) 13(3) West European Politics 1; A Lijpart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (New Haven, Yale University Press, 1999). More recent comparative research on the strength of national parliaments in the EU places the UK somewhere in the middle; see the discussion in K Auel and T Christiansen, ‘After Lisbon: National Parliaments in the European Union’ (2015) 38(2) West European Politics 261, 268.

Short-Lived Reparliamentarisation?  141 However, nuancing the typology of legislatures as having strong or modest policymaking powers,18 a distinction can be drawn between Parliament formulating and substituting a policy of its own – ie, policy-making – and policy-influencing.19 In Mezey’s original formulation, ‘strong’ policy-making power only goes as far as the capability to modify and reject proposals (whereas ‘modest’ denotes capacity to modify but not veto). Of the parliamentary mechanisms discussed in this chapter, private members’ bills by MPs who are not members of the government and, to an extent, MPs’ amendments to government proposals do represent opportunities for making policy. Indicative votes and scrutiny of secondary legislation are not able to act as a substitute for policy, but can influence and reframe its direction. Another important factor is revealed in Russell’s recent research, which further counters the traditional view that the UK Parliament is a weak policy actor relative to the executive. Investigating amendments to government bills, she finds that non-government influence and cross-party working is more extensive than was previously assumed.20 This cross-party element is a central feature in the mechanisms discussed below. In the Brexit Parliament (2017–19, the longest parliamentary session since the English Civil War), two central mechanisms for controlling the House of Commons were absent: the government had no majority and party discipline was lacking, meaning that neither the Conservatives nor Labour could rely on their backbenchers to support their respective positions. This situation gave rise to opportunities for Parliament to become more active. Across the EU, Union membership has been a factor in de-parliamentarisation: competences and policy areas which previously belonged to the jurisdiction of national legislatures were transferred upwards to the EU level. This was a double delegation – first upwards to the EU level and then to technocratic and non-majoritarian institutions such as EU agencies and regulatory networks made up of national regulators.21 Various elements of the executive were therefore better placed to be active players in EU decision-making, and there were more limited opportunities for parliaments to control them. However, as Raunio and Hix argue, in the UK example, ‘[w]hile the executive branch – the Prime Minister, individual cabinet ministers, regulatory agencies, and bureaucrats – has strengthened its leverage in agenda-setting, policy preparation and implementation, parliament [including opposition parties and backbenchers] have also improved their position through more effective overall scrutiny of government, particularly better access to information’,22 such as through the ESC.

18 M Mezey, Comparative Legislatures (Durham, NC, Duke University Press, 1979). 19 Norton (n 17) 5. 20 Russell and Gover (n 8); M Russell, D Gover, K Wollter and M Benton, ‘Actors, Motivations and Outcomes in the Legislative Process: Policy Influence at Westminster’ (2017) 52(1) Government and Opposition 1; M Russell and P Cowley, ‘Modes of UK Executive–Legislative Relations Revisited’ (2018) 89(1) Political Quarterly 18. 21 D Coen and M Thatcher, ‘Network Governance and Multi-level Delegation: European Networks of Regulatory Agencies’ (2008) 28(1) Journal of Public Policy 49; T Raunio and S Hix, ‘Backbenchers Learn to Fight Back: European Integration and Parliamentary Government’ (2000) 23(4) West European Politics 142, 146–47; Pollak and Slominski (n 5). 22 Raunio and Hix (n 22) 144.

142  Kathryn Wright The withdrawal of a Member State implies that those competences and powers are shifted (back) from the EU to the national level. These may include competences which were previously delegated upwards and are now to be ‘repatriated’, as well as new competences created at the EU level that are to be transferred. In the domestic setting, the executive apparently gains from these repatriated or transferred competences. In preparation for EU withdrawal, the executive capitalised on this by expanding the power of ministers to make secondary legislation to ‘correct deficiencies’, as will be discussed in section IV.C below. In dealing with EU-level functions after exiting the EU, the UK government may assume the function on the national level (either on behalf of the UK or through the devolved nations), continue to coordinate with the EU in the administration of the function, or remove the function altogether.23 However, these gains could be moderated. Externally, the government itself will no longer be an active player in EU decision-making, being relegated to non-member rule-taker status.24 Furthermore, it is more likely that the government will have to delegate some competences to technocratic agencies, particularly as regulatory equivalence in a range of policy areas will need to be monitored in the future UK–EU relationship. This makes it all the more important to disaggregate the study of the executive. At least two implications of the de-parliamentarisation thesis are therefore particularly important in the context of EU withdrawal: the impact of repatriated/transferred competences on executive–legislative relations; and the necessary revision of scrutiny processes. The latter would require continued monitoring of new EU legislation, scrutiny of the future UK–EU relationship, and a new framework for interparliamentary relations. In the existing literature, reparliamentarisation denotes the empowerment of national parliaments in the sphere of EU politics.25 In a post-EU membership context, this gives rise to questions about whether Parliament can capitalise on competences returning to the national level.

III.  Fourth Time Lucky: The ‘Meaningful Votes’ The EU (Withdrawal) Bill 201726 originally did not contain any provision for Parliament to have a say, much less a veto, on the outcome of the withdrawal negotiations with the EU. Many amendments were tabled as the Bill progressed through Parliament, but the only one that gained traction became section 13 on the ‘meaningful vote’.27 In particular, section 13(7) of the EU (Withdrawal) Act 2018 required the Prime Minister to notify

23 A Sinclair and J Tomlinson ‘Deleting the Administrative State?’ UK Constitutional Law Association Blog, 7 February 2019, https://ukconstitutionallaw.org/2019/02/07/alexandra-sinclair-and-joe-tomlinson-deleting-the-administrative-state. 24 See, eg, S Lavenex, ‘The Power of Functionalist Extension: How EU Rules Travel’ (2014) 21(6) Journal of European Public Policy 885. 25 See, eg, Pollak and Slominski (n 5) 144–45. 26 EU (Withdrawal) HC Bill (2017–19) [5]. 27 J Simson Caird, ‘Parliament’s Right to a Meaningful Vote: Amendments to the EU (Withdrawal) Bill’ House of Commons Library Blog, 11 June 2018, https://commonslibrary.parliament.uk/brexit/legislation/ parliaments-right-to-a-meaningful-vote-amendments-to-the-eu-withdrawal-bill; J Simson Caird, ‘Not the Meaningful Vote: A Guide to the Role of the Commons on Tuesday’ Verfassungsblog, 28 January 2019, https:// verfassungsblog.de/not-the-meaningful-vote-a-guide-to-the-role-of-the-commons-on-tuesday.

Short-Lived Reparliamentarisation?  143 Parliament by 21 January 2019 if no deal could be reached on the substance of the withdrawal agreement and the future relationship. Under section 13(8), a minister then had to make a statement on how the government proposed to proceed within 14 days and table a motion to allow Parliament to consider the matter. In the absence of this section, the Withdrawal Agreement and Political Declaration on the Future Relationship would have been more simply ratified through the Constitutional Reform and Governance Act 2010 in the same way as other Treaties. The timeframe of this chapter begins with a five-day debate on the negotiated Withdrawal Agreement that began on 5 December 2018, during which the government was in a weakened position. In particular, during that week, the government was found in contempt of Parliament for the first time in history for its failure to reveal legal advice to the Cabinet on the Withdrawal Agreement and Political Declaration on the Future Relationship.28 In addition, an amendment was introduced meaning that Parliament would be able to instruct the government on particular options – ‘Plan B’ – under section 13 of the EU (Withdrawal) Act 2018 if the Withdrawal Agreement was not passed.29 The ‘meaningful vote’ originally planned for 11 December 2018 was controversially withdrawn the day before when it became clear the government did not have the necessary support for it to pass. It was delayed until after Christmas, but no specific date was set. This clearly represented a swing back to the executive. When the opportunity to vote finally came on 15 January 2019, the Withdrawal Agreement was rejected by a majority of 230.30 The only amendment to the government motion concerned the UK’s unilateral ability to come out of the Northern Ireland backstop as set out in the draft Withdrawal Agreement.31 This was convincingly defeated, with only 24 votes for and 600 against. The agreement was put to the House for the second time on 12 March 2019. Alongside the Withdrawal Agreement and the Political Declaration, MPs were asked to consider a new instrument relating to the Withdrawal Agreement, based on the exchange of letters between Theresa May, Donald Tusk and Jean-Claude Juncker;32 a Joint Statement supplementing the Political Declaration;33 and a unilateral declaration by the UK.34 Backbenchers (particularly in the Eurosceptic wing of the Conservative Party, the so-called European Research Group (ERG)) had required assurances from the Attorney General (the government’s chief legal advisor and Cabinet member) about the status of the joint statement and the UK’s unilateral declaration and whether they granted a right to withdraw from the

28 ‘Contempt Motion on Publishing of Legal Advice’, 4 December 2018, https://www.parliament.uk/business/ news/2018/december/contempt-motion-on-publishing-of-legal-advice. 29 HC Deb 4 December 2018, vol 650, col 736, Dominic Grieve. 30 ‘Government Loses “Meaningful Vote” in the Commons’, 16 January 2019, https://www.parliament.uk/ business/news/2019/parliamentary-news-2019/meaningful-vote-on-brexit-resumes-in-the-commons. 31 HC Order Paper No 232 part 115 January 2019, John Baron amendment f, 9, https://publications.parliament. uk/pa/cm201719/cmagenda/OP190115.pdf. 32 https://ec.europa.eu/commission/publications/letter-president-european-council-and-president-europeancommission-prime-minister-theresa-may-14-january-2019_en. 33 https://ec.europa.eu/commission/sites/beta-political/files/joint_statement_.pdf. 34 ‘Declaration by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland Concerning the Northern Ireland Protocol’, 11 March 2019, https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/785124/2019-03-11_Unilateral_Declaration.pdf.

144  Kathryn Wright backstop. His inability to give this legal assurance was a key factor in the second rejection of the Agreement.35 This time, the vote was lost by a majority of 149.36 The third meaningful vote was held on 29 March 2019, the original withdrawal date, with the first Article 50 TEU extension already having been granted. Initially, the Speaker of the House of Commons enforced the parliamentary convention that the same motion should not be put twice, refusing to allow a further vote. To get around this constitutional obstacle, the government decoupled the draft Withdrawal Agreement from the Political Declaration on the future relationship and presented it again. This was despite section 13(1)(b) of the EU (Withdrawal) Act 2018, which stated that Parliament must approve ‘the withdrawal agreement and the framework for the future relationship’ to effect ratification. Meanwhile, the European Council’s extension decision was prudently worded so that only the Withdrawal Agreement would need to be approved to warrant the longer extension.37 In any case, the agreement was rejected for the third time by 286 to 344.38 The Prime Minister’s statement immediately after the defeat summarised the stalemate: ‘This House has rejected no deal. It has rejected no Brexit. [In the first round of indicative votes] it rejected all the variations of the deal on the table. And today it has rejected approving the withdrawal agreement alone and continuing a process on the future.’39 After Theresa May stood down, Conservative Party members elected Boris Johnson as their new leader in July 2019 and consequently he became Prime Minister. His commitment was to leave the EU on 31 October 2019. On 28 August 2019, on the advice of the Prime Minister, the Queen ordered Parliament to be prorogued. This was intended to take effect from between 9 and 12 September 2019 and last until the State Opening at the start of the new parliamentary session on 14 October 2019. Although the government presented this suspension of Parliament as routine ahead of a new legislative agenda, its disproportionate extent led others to suspect the real motivation was to limit MPs’ ability to scrutinise EU withdrawal plans and to ‘run down the clock’. Ultimately, Parliament was suspended between 10 September and 24 September, when the UK Supreme Court declared it justiciable and unlawful.40

35 https://www.gov.uk/government/publications/legal-opinion-on-joint-instrument-and-unilateraldeclaration-concerning-the-withdrawal-agreement. 36 ‘Government’s Brexit Deal Defeated Again in “Meaningful Vote”’, 12 March 2019, https://www.parliament.uk/ business/news/2019/march/key-brexit-vote-as-meaningful-vote-returns-to-the-commons; S Peers, ‘The Second Vote against the Withdrawal Agreement: What Next?’ EU Law Analysis Blog, 12 March 2019, http://eulawanalysis. blogspot.com/2019/03/the-second-vote-against-withdrawal.html, 37 European Council Decision taken in agreement with the United Kingdom, extending the period under Article 50(3)TEU, EUCO XT 20006/19, 22 March 2019, Article 1, https://data.consilium.europa.eu/doc/document/ XT-20006-2019-INIT/en/pdf, 38 ‘Commons Votes to Reject Government’s EU Withdrawal Agreement’, 29 March 2019, https://www.parliament. uk/business/news/2019/march/mps-debate-and-vote-on-the-withdrawal-agreement-with-the-european-union. 39 HC Deb 29 March 2019, vol 657, cols 771–75. 40 R (on the Application of Miller) v Prime Minister; Cherry and Others v Advocate General for Scotland [2019] UKSC 41. For a discussion, see, eg, P Craig, ‘Prorogation: Constitutional Principle and Law, Fact and Causation’ UK Constitutional Law Association Blog, 2 September 2019, https://ukconstitutionallaw.org/2019/09/02/paulcraig-prorogation-constitutional-principle-and-law-fact-and-causation; J Rowbottom, ‘Political Purposes and the Prorogation of Parliament’ UK Constitutional Law Association Blog, 3 September 2019, https://ukconstitutionallaw.org/2019/09/03/jacob-rowbottom-political-purposes-and-the-prorogation-of-parliament. The routine prorogation of Parliament then occurred for a shorter period from 8 to 14 October 2019.

Short-Lived Reparliamentarisation?  145 Meanwhile, renewed negotiations on the Irish backstop were reflected in the revised Protocol on Ireland/Northern Ireland and the Political Declaration on 17 October 2019.41 This paved the way for the EU (Withdrawal Agreement) Bill 2019, which was required to give effect to the Withdrawal Agreement in UK law. When it was introduced on 21 October 2019, this time MPs voted for the Agreement in principle (329 to 299), but did not approve the timetable for the Bill (308 to 322). In this way, MPs exerted power by delaying the fourth meaningful vote and consequently required the Prime Minister to request a third extension to the Article 50 period until 31 January 2020.42

IV.  The Executive’s Limitations to Parliamentary Power and Mechanisms to Respond This section examines three limitations to parliamentary power – enhanced secondary legislation powers, the prerogative in international relations, and agenda-setting – and the creative use of mechanisms to counteract them in the Brexit context: the use of secondary legislation scrutiny committees, (cross-party) private members’ bills, indicative votes and amendable motions. In each case I set out the status quo, discuss the relevant parliamentary mechanism and indicate its implications in the executive–legislative balance.

A.  Executive Prerogative Over International Relations In the UK, prerogative powers are customary executive powers that have been held by the Crown since medieval times and are now exercised by ministers, which exist outside statute. One significant area of prerogative power is international relations. However, case law draws limits on this. The prerogative cannot be exercised to take away rights recognised by statute, including rights deriving from EU law, or to undermine the aims of a statute.43 It would be an abuse of power to use the prerogative to frustrate the will of Parliament or to pre-empt parliamentary decisions.44 Where statute and existing prerogative powers overlap, prerogative powers are suspended for the duration of the statutory power.45 The executive’s prerogative power was central to when (extensions to the Article 50(3) TEU negotiating period), how (options for the future relationship with the EU) and indeed whether (triggering/revoking Article 50 TEU) Brexit should happen. The judiciary has played a key role in executive–legislative balance in the context of Brexit by adjudicating on the limits of prerogative powers. A prime example of this was the prorogation case. According to the UK Supreme Court, ‘a decision to prorogue Parliament

41 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community [2019] OJ C66 I/01 and Revised text of the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom [2019] OJ C66 I/02. 42 The Withdrawal Agreement Bill was eventually approved on 23 January 2020. 43 Laker Airways Ltd v Department of Trade [1977] QB 643. 44 R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513. 45 Attorney General v De Keyser’s Royal Hotel Ltd [1920] UKHL 1, [1920] AC 508.

146  Kathryn Wright (or to advise the monarch to prorogue Parliament) will be unlawful if [it] has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course’.46 A number of other issues have been litigated.47 Among others, first, the Miller case established the UK’s ‘constitutional requirements’ for the purposes of triggering Article 50 TEU.48 Significantly, the Prime Minister could not invoke the Article 50 notification under prerogative; an Act of Parliament was needed. Second, the Wightman case, started by a group of Scottish MPs, Members of the Scottish Parliament and Members of the European Parliament, resulted in a preliminary ruling from the Court of Justice affirming that the Article 50 notification could be revoked.49 Third, the domestic legality of the first Article 50 extension was (unsuccessfully) challenged in English Democrats.50 These latter two cases also demonstrate how politicians themselves have used judicial channels to further their aims. Cross-party private members’ bills leading to the EU (Withdrawal) Act 2019 challenged the government’s power in international relations. A private members’ bill – also known as a backbench bill – is one introduced by an individual MP rather than by the government.51 Only 11 per cent of private members’ bills become law, compared with 94 per cent of government bills.52 This is largely because they have much less time for debate as government business dominates the timetable.53 Private members’ bills attempted to open up other channels for backbench MPs to influence Brexit strategy, including amendable motions for debate and indicative votes giving them the possibility to air and gauge support for different options. The central theme of these bills was the curtailment of the Prime Minister’s prerogative to choose whether and when to request an extension to the Article 50 TEU negotiating period. These bills were examples of MPs trying to limit the Prime Minister’s ability to ‘run down the clock’ to the original exit day of 29 March. The first rejection of the Withdrawal Agreement led to MPs from across three political parties tabling the European Union (Withdrawal) (No 2)54 Bill on 16 January.55 This same

46 R (on the Application of Miller) (n 40) para 50. 47 For an overview of the relevant cases, see ‘Brexit Questions in National and EU Courts’, House of Commons Library Briefing Paper 8415, 1 November 2019, https://researchbriefings.parliament.uk/ResearchBriefing/ Summary/CBP-8415. 48 R (on the Application of Miller and Another) v Secretary of State for Exiting the European Union [2017] UKSC 5. 49 Case C-621/18 Wightman and Others v Secretary of State for Exiting the European Union EU:C:2018:851. 50 R (on the Application of the English Democrats) v Prime Minister & Secretary of State for Exiting the EU, Case No CO/1322/2019. 51 https://www.parliament.uk/about/how/laws/bills/private-members. 52 ‘Successful Private Members’ Bills since 1983’, House of Commons Library, 5 July 2017, https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN04568; ‘EU Referendum Bill: How Many Private Members’ Bills Pass?’ The Guardian, 15 May 2013, https://www.theguardian.com/news/datablog/2013/may/15/ eu-referendum-bill-cameron-data. 53 Private members’ bills have precedence on 13 Fridays in each parliamentary session under Standing Order 14(8): ‘Standing Orders of the House of Commons – Public Business 2018’, https://publications.parliament.uk/pa/ cm201719/cmstords/1020/body.html#_idTextAnchor076. 54 ‘No 1’ was the Bill which led to the EU (Withdrawal) Act 2018. 55 ‘European Union (Withdrawal) (No 2) Bill 2017–19’, House of Commons Library briefing paper 8476, 18 January 2019, https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8476.

Short-Lived Reparliamentarisation?  147 cross-party group was responsible for a number of subsequent efforts to introduce legislation to steer Brexit strategy. This provides evidence for Russell’s finding that cross-party working is more prevalent than the dominant ‘opposition mode’ of the House of Commons would suggest.56 Bill No 2 would have allowed the Liaison Committee – comprising the Chairs of all Commons select committees in particular policy areas – to take the lead on preparation of a plan if the government had not secured an approval motion after a ‘meaningful vote’ under section 13(1)(b) of the EU Withdrawal Act 2018 Act by 11 February 2019. Following further cross-party negotiations, revised EU (Withdrawal) (No 3) Bill was introduced on 21 January 2019.57 This Bill dropped the statutory role for the Liaison Committee after the Chair of that Committee doubted it had the resources to perform that task, but required the Prime Minister to ask the European Council for an extension of Article 50 TEU if no deal looked likely. Significantly, if Parliament did not approve the Withdrawal Agreement before 26 February, the Prime Minister would be required to seek an extension to 31 December 2019, removing the Prime Minister’s discretion to choose an extension date. The EU (Withdrawal) (No 4) Bill introduced on 13 February 201958 also aimed at restricting the Prime Minister’s discretion about whether and when to seek an extension. The Bill gave the government until the close of business on 12 March 2019 to secure Commons approval for a deal. The Bill also provided a role for the House of Commons in the event that the European Council proposed a different extension date from the one proposed by the Prime Minister. In the end, Bills 2, 3 and 4 were not granted time for debate in the House of Commons and so were not successful. On 2 April 2019, after the original withdrawal date of 31 March, the EU Withdrawal (No 5) Bill, also known as the Cooper/Letwin Bill, was presented.59 This Bill aimed to extend Article 50, but left the length of the extension to the discretion of the Prime Minister. The purpose of the European Union (Withdrawal) (No 5) Bill was to avert exiting the EU without a deal on 12 April ie, the deadline of the first extension. All the stages of the Bill took place in one day – 8 April – following a business motion to disapply Standing Order 14, the rule which governs the use of parliamentary time. Given the obstacles to the success of private members’ bills, the quick passage and success of this Bill was highly unusual. While also being aided by amendments to the Bill in the House of Lords to correct drafting problems,60 the Bill’s passage reflects the eventual success of backbench MPs in garnering cross-party support. The amended Bill came into law as the EU (Withdrawal) Act 2019.61

56 Russell and Cowley (n 20). 57 ‘European Union (Withdrawal) (No 3) Bill 2017–19’, House of Commons Library briefing paper 8480, 23 January 2019, https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8476. 58 ‘European Union (Withdrawal) (No 4) Bill 2017–19’, House of Commons Library briefing paper 8502, 19 February 2019, https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8502. 59 ‘European Union (Withdrawal) (No 5) Bill 2017–19’, House of Commons Library briefing paper 8541, 2 April 2019, https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8541; G Cowie, ‘The Cooper Act and Article 50: A New Role for Parliament?’ House of Commons Library Blog, 9 April 2019, https://commonslibrary.parliament.uk/brexit/legislation/the-cooper-act-and-article-50-a-new-role-for-parliament. 60 See, eg, M Elliott ‘The Cooper-Letwin Bill: Parliamentary Control over the Extension of Article 50’ Public Law for Everyone Blog, 4 April 2019, https://publiclawforeveryone.com/2019/04/04/the-cooper-billparliamentary-control-over-the-extension-of-article-50. 61 www.legislation.gov.uk/ukpga/2019/16/contents/enacted.

148  Kathryn Wright The predominance of the executive is still present in the EU (Withdrawal) Act 2019. The prerogative of the Prime Minister to choose and agree to an extension of Article 50 was preserved in section 6, provided that the requested extension ended no earlier than 22 May 2019. The Commons could in principle vote to amend that date. In practice, when the Prime Minister chose 30 June, MPs approved her choice by 420 to 110. The government was also successful in amending the process for changing the definition of ‘exit day’ in the EU (Withdrawal) Act 2018.62 The date of ‘exit day’ could then be changed by secondary legislation through the negative rather than affirmative procedure, with less scrutiny. This not only applied to the motion to prevent ‘no deal’ on 12 April, but also to the subsequent extensions. The government in place since December 2019 has successfully removed Parliament’s ability to scrutinise the future relationship agreement in the EU (Withdrawal Agreement) Act 2020, the domestic legislation which ratifies the Withdrawal Agreement.

B.  Agenda-Setting and Control of Parliamentary Business As already stated, the government overwhelmingly has control over the parliamentary timetable. Backbenchers gaining control of the Order Paper, ie, the House of Commons agenda, is highly unusual. Standing Order 14 of the House of Commons states that government business has precedence at every sitting of a parliamentary session, with specified exceptions.63 These exceptions include 35 days for Backbench Business Committee debates selected on the basis of bids by individual MPs, 20 days allocated to Opposition parties and 13 Fridays for debates on private members’ bills proposed by individual MPs.64 Alongside the ‘meaningful’ vote’ process under section 13 of the EU (Withdrawal) Act 2018 as described in section III above, MPs made various attempts to exert influence on the Brexit agenda through non-binding votes tabled by the government, amendable neutral government motions, and notably the ‘indicative’ votes held in March and April 2019. The role of the Speaker of the House of Commons is significant: as the politically impartial chair of debates in the House of Commons, the Speaker chooses which options should be debated. On 10 January 2019, the Speaker controversially allowed a vote on an amendment to a government programme motion by Dominic Grieve MP, a Conservative backbencher and former Attorney General. A programme motion sets out how much time is set aside for debates. The government lost by 11 votes and the effect was to require the government to table a motion proposing a ‘Plan B’ within three days rather than 21 days if the Withdrawal Agreement was rejected for the second time (as it ultimately was, on 15 January 2019).

62 On the lawfulness of the first art 50 extension, see M Elliott, ‘Did the UK Government Act Unlawfully by Extending Article 50?’ Public Law for Everyone Blog, 26 March 2019, https://publiclawforeveryone.com/2019/03/26/ did-the-uk-government-act-unlawfully-by-extending-article-50. 63 Standing Order 14, https://publications.parliament.uk/pa/cm200203/cmstords/17507.htm. 64 See, eg, A Lilly, ‘Who Should Control the Parliamentary Timetable?’ Institute for Government, 28 January 2019, https://www.instituteforgovernment.org.uk/blog/who-should-control-parliamentary-timetable.

Short-Lived Reparliamentarisation?  149 Following the first vote against the Withdrawal Agreement, the Prime Minister Theresa May gave a written statement on 21 January 2019 setting out her next steps. This plan included MPs voting on a range of substantive outcomes on 29 January 2019. One of the (unsuccessful) proposals, again by Dominic Grieve MP, was to set aside six full days in the Commons before 26 March to debate alternatives to the Prime Minister’s Brexit plan. According to this proposal, MPs would prioritise proposals from 300 MPs covering at least five political parties. However, the only two proposals that did enjoy majority support were the Spelman amendment rejecting leaving the EU without a withdrawal agreement and framework for the future relationship, and the Brady amendment to seek ‘alternative arrangements’ for the Northern Ireland backstop.65 While these outcomes were non-binding, it was on the basis of the Brady amendment that the Prime Minister sought to re-open negotiations with the EU. With the original exit day of 31 March 2019 fast approaching, backbench MPs working across political parties eventually gained the opportunity to hold their own ‘indicative’ votes on the way forward. Oliver Letwin MP, one of the instigators of the EU Withdrawal (No 5) Bill, tabled a motion on 25 March for control of the Order Paper and votes for two days later. MPs were able to accept as many or as few options as they wished. The fact that the options were not ranked in order of preference made it difficult to gauge the relative strength of support for each one. However, the aggregate of MPs merely choosing an option indicated that it would in principle be acceptable and a basis for compromise. The first round of indicative votes on 27 March offered MPs eight options. However, none of them ultimately passed. As the European Commission’s chief spokesperson put it: ‘We counted eight noes last night, now we need a yes on the way forward.’66 The options and results were as follows: • Customs union: 265–271. • Confirmatory vote to ratify agreement – essentially another referendum, but to confirm an agreement previously approved by Parliament: 268–295. • Labour Party official plan, including a ‘comprehensive customs union’ with UK consultation on future trade agreements, alignment with the single market, non-regression of EU rights, participation in EU agencies and programmes, and a security agreement: 237–307. • ‘Common Market 2.0’ – membership of the European Free Trade Association (EFTA), allowing continued participation in the single market and a ‘comprehensive customs arrangement’ with the EU until a fuller trade agreement was negotiated guaranteeing frictionless movement of goods and an open border in Ireland: 189–283. • Contingent preferential trade agreements in case a withdrawal agreement is not implemented: 139–422.

65 ‘House of Commons Debates Brexit Next Steps’, 29 January 2019, https://www.parliament.uk/business/ news/2019/parliamentary-news-2019/house-of-commons-debates-brexit-next-steps. 66 ‘Brexit: Government Plans to Hold New Vote’ The Guardian, 28 March 2019, https://www.bbc.co.uk/news/ uk-politics-47729773.

150  Kathryn Wright • EEA/EFTA membership without a customs union: 64–377. • Revocation of Article 50 TEU – if Parliament does not approve the Withdrawal Agreement two days before scheduled exit day, the government would need to ask MPs to vote on whether they authorised a no deal Brexit. If they voted against, the Prime Minister would be required to revoke Article 50):67 184–293. • Leaving the EU without a deal on 12 April: 160–400. Although all eight options were rejected, the two rejected by the smallest majority were a ‘permanent and comprehensive UK-wide customs union with the EU’, which lost by six votes, and a confirmatory vote, which lost by 27 votes. ‘No deal’ with the EU was the least attractive option to MPs. This was the third time that a ‘no deal’ outcome was rejected by the House. In the second round of indicative votes on 1 April, MPs were presented with four alternatives, which overlapped with those in the initial round: • Customs union: 273–276. • Confirmatory public vote: 280–292. • Common Market 2.0 – as above, but with the UK also being consulted on the EU’s future trade agreements with third countries until new UK–EU trade arrangements were introduced guaranteeing the Irish border: 261–282. • Revocation of Article 50 – as an alternative, Article 50 should be extended if it is not possible to avoid a no deal outcome; there should be an inquiry to assess a future relationship acceptable to both the UK and the EU: 191–292. Again, membership of a customs union was the most popular option, losing by a majority of only three after the Scottish National Party abstained. Similarly, the Labour Party instructed its MPs not to support the Article 50 revocation/extension option tabled by Remain-supporting Conservative and Scottish National Party MPs. Despite the cross-party efforts to secure the indicative votes in the first place, clearly party politics still prevailed and ultimately prevented a decisive consensus. After a tied decision, the Speaker’s casting vote blocked a third round of indicative votes on 3 April. These indicative votes were not binding on the government and they were indecisive in that none commanded majority support. Nonetheless, they had an influence on the negotiations between the Prime Minister and the Leader of the Opposition. Having failed to win support for the draft Withdrawal Agreement for the third time, Theresa May announced talks with Jeremy Corbyn,68 focusing on the future relationship with the EU. They announced they would either agree and introduce legislation before the special European Council on 10 April, when a further extension to the Article 50 period was to be considered, or, if they were unable to reach a position, would agree terms to put a range of options to MPs, with both parties recognising and giving effect to the results. This would in effect render the votes binding. In the event, talks broke down; again, party politics proved insurmountable. 67 Tabled by Joanna Cherry MP, one of the applicants in the Wightman case, in which the Court of Justice of the European Union (CJEU) had ruled that revocation was possible: Wightman and Others (n 49). 68 https://www.gov.uk/government/speeches/pm-statement-on-brexit-2-april-2019.

Short-Lived Reparliamentarisation?  151 Amendable motions in neutral terms were also a significant channel for MPs to try to influence the agenda. Standing Order 24B of the House of Commons states that if the Speaker considers that a motion is expressed in ‘neutral terms’ (eg, ‘This House has considered the matter of ….’), then ‘no amendments to it may be tabled’.69 However, the Grieve motion on 4 December 2018 under section 13 of the EU (Withdrawal) Act 2018 to instruct the government on ‘Plan B’ if the Withdrawal Agreement was not passed opened the door for government motions to be amended. MPs then suspended Standing Order 14 on several occasions: to allow for the indicative votes, to debate Bill No 5 and to enact that Bill as the EU (Withdrawal) Act 2019 in a single day.70 Reforms proposed by the Select Committee on Reform of the House of Commons (the Wright Committee)71 in 2009 recommended the establishment of a House Business Committee composed of frontbenchers from the main parties, backbenchers elected by the House, and the Deputy Speaker in the chair. The Committee would propose the agenda each week, to be put to the whole House of Commons for decision and possible amendment (in common with the Scottish Parliament). The proposals were approved in principle by the House of Commons before the 2010 General Election, but ultimately only the Backbench Business Committee proposal was taken up. It remains to be seen whether the modest progress gained by MPs in setting the agenda will encourage them to put their influence on a more permanent footing. As the government once again enjoys a majority after the December 2019 General Election, the prospects of this seem weaker.

C.  Secondary Legislation by Ministers The EU (Withdrawal) Act 2018 provides for the repeal of the European Communities Act 1972, the conduit by which EU law comes into UK law, including removing the supremacy of EU law under section 2 of the 1972 Act. To avoid gaping holes in the statute book, section 2(1) of the Withdrawal Act then provides for the retention of EU laws, so that direct EU legislation and ‘EU-derived domestic legislation’ that is in effect immediately before exit ‘continues to have effect in domestic law on and after exit day’. Section 8 of the EU (Withdrawal) Act 2018 grants wide-ranging powers to ministers to ‘correct deficiencies’ in legislation subsumed into UK law, and section 23 allows them to make other consequential amendments. They do this through secondary legislation, known as ‘statutory instruments’ (SIs). In the UK, it is not uncommon for Acts of Parliament (ie, primary legislation) to delegate powers to the executive to make SIs, but in the case of the EU (Withdrawal) Act 2018, the scope is particularly broad. The definition of ‘exit day’ itself was also done by SI under section 20(4) of the Withdrawal Act in order to take account of extensions. SIs can be laid by ‘affirmative’ or ‘negative’ procedure. An SI that is subject to affirmative procedure requires the formal approval of both Houses of Parliament before it becomes law. An SI under the negative procedure will automatically become law without debate unless there is an objection from either House. 69 https://publications.parliament.uk/pa/cm201516/cmstords/1154/body.htm#24B. 70 A Young. ‘Taking (Back) Control?’ UK Constitutional Law Association Blog, 23 April 2019, https://ukconstitutionallaw.org/2019/04/23/alison-young-taking-back-control. 71 Reform Committee, Rebuilding the House (HC 2008–09, 1117); M Russell, ‘“Never Allow a Crisis Go to Waste”: The Wright Committee Reforms to Strengthen the House of Commons’ (2011) 64(4) Parliamentary Affairs 612.

152  Kathryn Wright There are existing committees which scrutinise EU affairs. House of Commons select committees mirror government departments. Paradoxically, the prospect of withdrawal from the EU increased the salience of EU affairs. All select committees have a role in scrutinising elements of Brexit, since it permeates all policies, geographical areas and sectors of the economy – an example of the mainstreaming of EU affairs.72 Some had a central role regarding EU affairs: in the Commons, the ESC, the Exiting the EU Committee and the International Trade Committee. The latter two were only formed when the respective departments were created in 2016 after the referendum (and the second disbanded when the Department for Exiting the EU closed on withdrawal day, 31 January 2020). The ESC73 had a different role in assessing the significance of around 1,100 EU legislative proposals and documents that Parliament received each year. It served to streamline scrutiny of EU affairs by sifting these documents to prioritise which should be subject to fuller scrutiny and subsidiarity checks. To that end, it prepared weekly reports on EU draft legislation as well as carrying out inquiries on specific topics, such as its report in March 2019 on the conduct of the EU withdrawal negotiations. It was also responsible for producing reasoned opinions under the subsidiarity Early Warning Mechanism under Protocol 2, Article 6 of the Lisbon Treaty. Ongoing scrutiny procedures will need to be established in order to continue to monitor EU affairs and legislation beyond the transition period. Before the December 2019 General Election, there were inquiries in the Exiting the EU Select Committee on the role of Parliament in the progress of the UK’s negotiations on EU withdrawal,74 and in the ESC on post-Brexit scrutiny of EU law and policy. This latter inquiry included a consideration of changes needed to the UK’s current system for scrutinising EU law and policy; whether and how EU laws and policies will affect the UK after Brexit; the purpose of continued scrutiny of EU law and policy; action that the government should take to facilitate strong parliamentary scrutiny; and the form that scrutiny should take to maximise its effectiveness.75 A significant development for executive–legislative relations as a result of the Brexit process is the creation of a new sifting committee in the House of Commons to scrutinise SIs under the EU (Withdrawal) Act 2018: the European Statutory Instruments Committee (ESIC).76 A number of SIs have been introduced under other Acts of Parliament and they continue to fall under the existing committee system for secondary legislation, which is subject to a less comprehensive review.

72 Gattermann, Högenauer and Huff (n 12). 73 ‘Role – European Scrutiny Committee’, https://www.parliament.uk/business/committees/committees-a-z/ commons-select/european-scrutiny-committee/role. 74 https://www.parliament.uk/business/committees/committees-a-z/commons-select/exiting-the-europeanunion-committee/inquiries/parliament-2017/role-of-parliament-uk-eu-negotiations-inquiry-17-19. This includes the primary and secondary legislation needed, scrutiny in the event of no deal, and Parliament’s role in the oversight and negotiation mandate of international agreements. 75 h t t p s : / / w w w. p a r l i a m e n t . u k / b u s i n e s s / c o m m i t t e e s / c o m m i t t e e s - a - z / c o m m o n s - s e l e c t / european-scrutiny-committee/inquiries/parliament-2017/post-brexit-scrutiny-eu-law-policy-17-19. 76 Procedure Committee, Scrutiny of Delegated Legislation under the European Union (Withdrawal) Act 2018 (HC 2017–19, 1395); ‘The European Union (Withdrawal) Act 2018: Scrutiny of Secondary Legislation (Schedule 7)’, House of Commons library briefing paper 8329, 9 July 2018, https://researchbriefings.parliament.uk/ ResearchBriefing/Summary/CBP-8329.

Short-Lived Reparliamentarisation?  153 The ESIC, together with its equivalent committee in the House of Lords, has 10 days to scrutinise draft legislation proposed for the negative procedure and can recommend that it be upgraded to the affirmative procedure, requiring MPs to debate it. If the minister rejects the Committee’s recommendation, he or she must give a written statement in the House. Originally, the government had planned to provide only an explanatory memorandum accompanying the legislation, but ‘the Committee felt that this fell well short of what Ministers had offered during the passage of the European Union (Withdrawal) Act’77 and was successful in forcing greater scrutiny of ministers’ powers. The Committee cannot modify proposals, but does hold ministers to account. As such, linking to the themes in the previous section, this process does not amount to a policy-making power, but policyinfluencing through raising concerns and requiring the government to justify its choices. A further feature of the ESIC is that it engages the public directly in scrutiny by welcoming observations on specific SIs from interested individuals and organisations through its ‘Engagement Tool’.78 There was no precise figure on the number of SIs needed to effect Brexit (original estimates were in the region of 800–1,000), an additional obstacle to scrutiny.79 A week before the second withdrawal extension, the Leader of the House of Commons stated that the programme of Brexit statutory instruments was ‘almost complete’ and that the government expected to lay about 550 in total.80 As at 8 April 2019, 528 SIs had been laid and 475 had completed their passage through Parliament.81 Controversially, 130 of these amend or repeal Acts of Parliament. The Public Law Project’s SIFT project,82 undertaking a qualitative analysis of SIs, also revealed examples of SIs introducing policy changes even while the relevant primary legislation was still going through Parliament.83 Out of all the SIs, 306 were proposed for the negative procedure and 221 were laid by the government under the affirmative procedure explained above. As at 8 April, the ESIC had considered 226 negative SIs and recommended that 43 of them – a considerable proportion – be upgraded to the affirmative procedure. Parliamentary conventions govern the number of days for scrutiny. Before each of the extensions to the withdrawal date, the government did not leave enough time to adhere to these conventions.84 In order to deal with pressure on the legislative programme, the

77 House of Commons Procedure Committee, ‘Committee Welcomes Government Undertaking on Scrutiny of SIs’, 10 October 2018, https://www.parliament.uk/business/committees/committees-a-z/commons-select/ procedure-committee/news-parliament-2017/government-undertaking-scrutiny-statutory-instruments-17-19. 78 https://esic-parliament.uk. 79 https://beta.parliament.uk/find-a-statutory-instrument. 80 https://www.hansardsociety.org.uk/blog/westminster-lens-brexit-statutory-instruments-dashboard#howmany-brexit-sis-has-the-government-laid-before-parliament-so-far. 81 According to the Hansard Society’s Brexit statutory instruments analysis: ibid. 82 https://publiclawproject.org.uk/what-we-do/current-projects-and-activities/brexit/the-sift-project. The Public Law Project is a charity with a research programme aiming to improve access to justice. 83 A Sinclair and J Tomlinson, ‘Brexit, Primary Legislation, and Statutory Instruments: Everything in its Right Place?’ UK Constitutional Law Association Blog, 25 March 2019, https://ukconstitutionallaw.org/2019/03/25/ alexandra-sinclair-and-joe-tomlinson-brexit-primary-legislation-and-statutory-instruments-everything-in-itsright-place. 84 R Fox, ‘Can the Government Get All its Brexit Statutory Instruments through Parliament by Exit Day on 29 March?’ Hansard Society, 12 February 2019, https://www.hansardsociety.org.uk/blog/can-thegovernment-get-all-its-brexit-statutory-instruments-through.

154  Kathryn Wright government could decide not to follow these parliamentary conventions. The ‘urgent deficiencies’ procedure in Schedule 7, section 5 of the EU (Withdrawal) Act allows ministers to make SIs with immediate effect. Both Houses would then have to approve the SIs made affirmative within 28 days in order for them to remain in force. In summary, the enhanced scrutiny procedures for SIs laid out by the EU Withdrawal Act 2018 have strengthened Parliament. The procedures create incentives for politically and legally significant SIs to be debated through committee recommendations, increasing accountability. While ministers still have the option of rejecting Parliament’s opinion, they must do so transparently by providing a justification. However, these powers of scrutiny do not extend to secondary legislation under other statutes. This is the case even though those statutes also make provision for EU withdrawal consequences or deal with previously EU competences, eg, the Taxation (Cross-Border Trade) Act 2018, the Environment Principles and Governance Bill, and the Immigration and Social Security Coordination (EU Withdrawal) Bill. As indicated by the ESIC inquiry, there are still a number of issues to be settled around the design of scrutiny processes and ongoing monitoring of EU legislation beyond the transition period. During transition, the European Scrutiny Committee (ESC) can continue to report on the impact of new EU legislation and raise issues of ‘vital national interest’ for debate.85

V. Conclusions This chapter has assessed the success of MPs in their scrutiny of the UK government’s Brexit strategy during the year in the House of Commons from the introduction of the draft Withdrawal Agreement in December 2018 to Parliament’s dissolution in November 2019. The ‘meaningful vote’ provisions secured in section 13 of the EU (Withdrawal) Act 2018 were central to attempts to assert parliamentary control. The House of Commons rejected the negotiated Withdrawal Agreement and Political Declaration on the Future Relationship three times, but this remained an example of passive legislative power. Collectively, MPs were not able to propose an alternative solution successfully. In addition to the unprecedented unlawful prorogation of Parliament, this chapter has focused on three specific limitations to parliamentary sovereignty: executive prerogative power concerning whether, when and how EU withdrawal should happen; control of the parliamentary agenda; and the extension of ministers’ authority to make secondary legislation. It then considered MPs’ use of parliamentary mechanisms in response to these limitations to carve out a more active legislative role. In the typology of parliamentary powers, private members’ bills and, to an extent, amendments to government motions, represent opportunities for making policy. Indicative votes and scrutiny of secondary legislation are not able to substitute the government’s policy, but can influence and reframe its direction. Given the low success rate of private members’ bills, the passage of the Bill that became the European Union (Withdrawal) Act 201986 was an impressive feat. It appears to set a

85 EU

(Withdrawal Agreement) Act 2020, s 29.

86 www.legislation.gov.uk/ukpga/2019/16/contents/enacted/data.htm.

Short-Lived Reparliamentarisation?  155 precedent87 for the ability of cross-party backbenchers to take control of debating time and to initiate and enact legislation. However, the Act only deals with one issue relating to a narrow timeframe – avoiding no deal on 12 April 2019 – which was quickly superseded by events. The Act also preserved the Prime Minister’s prerogative to choose the date of the Article 50 TEU extension. As government business takes priority in the House of Commons timetable, MPs’ use of indicative votes and amendments to motions to wrest control of the agenda, at least briefly, as well as requiring extensions to the negotiation period also denote achievements. However, there are caveats to this: first, procedures themselves have not formally changed – standing orders were only suspended88 (and on previous occasions, a majority of MPs voted not to suspend them); and, second, while MPs mobilised procedures, they were not able to capitalise on that success in terms of substantive outcomes for Brexit. For example, in the indicative votes of 27 March and 1 April 2019, which were supposed to test where a Commons majority lay, none of the 12 motions in total commanded sufficient support. A majority in the Commons rejected a ‘no deal’ scenario on no less than three occasions,89 but still struggled to coalesce around a positive way of preventing this from happening, partly due to the myriad options and partly due to party politics. Nonetheless, Parliament was able to require the government to seek a ring-fenced agreement on citizens’ rights even in a no deal situation (the Costa amendment).90 The 2019 Act and the securing of indicative votes do represent a success for cross-party alliances. As Russell shows, cross-party working was already more prevalent than had been traditionally assumed, so perhaps this only became more visible in the Brexit context. There were calls for a national unity government, as happened before in the UK during a time of crisis.91 This would have been the clearest expression of cross-party working, but it met with resistance due to the entrenched ‘opposition mode’ of the House of Commons and was never seriously pursued. The Commons ESIC has increased democratic legitimacy by holding ministers to account for their choices in secondary legislation. In particular, it can recommend that instruments laid under the ‘negative’ scrutiny procedure instead be subject to debate under the ‘affirmative’ procedure. If the minister rejects the recommendation, an explanation must be given to the House. Affirmative instruments are then subject to approval by both Houses.

87 During the passage of the Bill in the House of Lords, there was considerable discussion about whether a precedent was in fact being set – for example, Lord Goldsmith: ‘this is not a precedent, because the circumstances are exceptional’; Lord Judge: ‘this, whether precedent or not – and it was – is a one-off and goes no further’. HL Deb 8 April 2019, vol 797, cols 398, 407–08. 88 Setting aside Standing Order 24B to enable motions on neutral terms to be amendable, and Standing Order 14 to hold indicative votes, to debate EU (Withdrawal (No 5) Bill, and to enact the Bill as the EU (Withdrawal) Act 2019. 89 Spelman amendment on 29 January 2019: HC Deb 29 January 2019, vol 653, cols 775–78, on 13 March 2019, https://www.parliament.uk/business/news/2019/march/house-of-commons-to-vote-on-no-deal-brexit and on 27 March 2019 (against the Baron option in first round of indicative votes): HC Deb 27 March 2019, vol 657, cols 481–85. The Prime Minister herself finally ruled out no deal (in a change from the ‘no deal is better than a bad deal’ mantra) on 6 April 2019. 90 ‘Further Debate on Brexit Next Steps Ahead of March Votes’, 27 February 2019, https://www.parliament.uk/business/news/2019/february/further-debate-on-brexit-next-steps-ahead-of-march-votes. Correspondence between the UK and the EU: https://www.gov.uk/government/publications/costa-amendment-letter-to-the-eu-institutions. 91 This occurred in 1931–40 during the Great Depression.

156  Kathryn Wright While significant, these enhanced scrutiny processes only apply to secondary legislation laid pursuant to the EU (Withdrawal) Act 2018 itself and not to secondary legislation laid under other Acts of Parliament. In terms of drivers for change in the executive–legislative balance, the June 2016 referendum leading to the UK’s withdrawal negotiations challenged the representative democracy of Parliament itself with direct democracy. Later, there was popular mobilisation in the form of the People’s Vote March on 23 March 2019, which was attended by over a million people, and a petition to revoke the Article 50 notification, with over six million signatories. The government rejected it, but as with any petition with over 100,000 signatures, MPs were required to debate it.92 Meanwhile, two factors which normally assure the government’s dominance were absent in the Brexit House of Commons – no government majority and a lack of partypolitical discipline. Brexit fractured both major political parties – the Conservatives and Labour – and Labour as the formal opposition did not take advantage of the government’s lack of a majority. The Independent Group of MPs, initially not a political party but then established as Change UK, was formed from disaffected members of both parties. Rejection of their former parties’ approaches to Brexit was one (although not the only) trigger for this, with support for a second referendum, including Remain as an option, being the unifying characteristic of the breakaway MPs. However, their initial promise did not materialise when they failed to win a single seat in the European Parliament elections in May 2019. Party politics re-asserted itself following the December 2019 UK General Election. The UK and EU judiciaries played a key role in defining the executive–legislative balance in the context of Brexit, particularly on the limits of prerogative powers. This was most obvious when the UK Supreme Court declared the September 2019 prorogation of Parliament to be unlawful. Earlier cases established the UK’s ‘constitutional requirements’ for the purposes of triggering Article 50 TEU, confirmed that the Article 50 notification could be revoked and examined the legality of the UK’s agreement to the Article 50 extension. The applicants in some of these cases were politicians (in Wightman on Article 50 revocation and in English Democrats on the legality of the extension) using different channels to further their aims. Events in the Brexit House of Commons have brought into sharp relief the traditional doctrine of parliamentary sovereignty and different understandings of government in Parliament. To return to the overall question addressed by this volume regarding the evolution of the executive–legislative balance since the Lisbon Treaty, the extraordinary circumstances make it difficult to assess the extent to which any change might be a lasting one. Events since the UK General Election suggest the executive once again has the upper hand, and factors favouring the Commons’ power were short-lived. In the EU (Withdrawal Agreement) Act 2020, the government successfully removed the requirement for parliamentary scrutiny of an agreement on the future UK–EU relationship. In the post-withdrawal context, the executive will be the gatekeeper in terms of deciding what happens to competences returned from the EU level – retaining, removing or continuing to coordinate in



92 https://petition.parliament.uk/petitions/241584.

Short-Lived Reparliamentarisation?  157 some way with the EU and its EU Member States. Technocratic agencies are likely to have a greater role in assessing regulatory equivalence in any future relationship. This invites consideration of the prospects for reparliamentarisation. The UK Parliament will need new processes for monitoring new EU legislation, for scrutiny of the future UK–EU relationship, and a new framework for interparliamentary relations beyond the Lisbon Treaty system. The fundamental question is whether competences transferred (back) to the national level will indeed lead to Parliament taking back control.

158

part iii Executive–Legislative (Im)balance and Variations Across Policy Areas

160

9 How the Debates on Trade Policy Helped Rebalance the Executive–Legislative Relationship in Favour of the European Parliament PÉTER MÁRTON

I. Introduction The Common Commercial Policy (CCP) is as old as European integration itself and its substantive and institutional evolution is no less illustrious. The history of this policy field has often been fraught with conflict, obfuscation, institutional breakdown and other sorts of intrigue. Over the past six decades, Member States have routinely jostled with the Commission and amongst themselves to determine two things: how much power to delegate to the EU; and just how protectionist or open to be towards the rest of the world.1 The creation of the World Trade Organization (WTO) in 1995 largely settled the latter debate as Member States – some more begrudgingly than others – endorsed the idea of rule-based trade premised on the gradual liberalisation of an ever-growing number of economic sectors. This was a decision which would gradually shift trade policy from the realm of low politics to high politics as the public grew increasingly interested and eventually wary of this agenda.2 From the institutional perspective, the European Parliament (EP) was traditionally excluded from these debates. Yet as the interest in trade increased, the questions of how to shape the institutional rules of the CCP shifted away from issues of power delegation to the Commission and towards the question of whether European Parliamentarians

1 E da Conceição-Heldt, ‘Variation in EU Member States’ Preferences and the Commission’s Discretion in the Doha Round’ (2011) 18 Journal of European Public Policy 403; M Krajewski, ‘External Trade Law and the Constitution Treaty: Towards a Federal and More Democratic Common Commercial Policy?’ (2005) 42(1) Common Market Law Review 91; G Villata Puig and B Al-Haddab, ‘The Common Commercial Policy after Lisbon: An Analysis of the Reforms’ (2011) 2 European Law Review 289; AR Young and J Peterson, Parochial Global Europe: 21st Century Trade Politics (Oxford, Oxford University Press 2014). 2 F Laursen and C Roederer-Rynning, ‘Introduction: The New EU FTAs as Contentious Market Regulation’ (2017) 39 Journal of European Integration 763.

162  Péter Márton could and should play a role in making trade policy more legitimate.3 The 2009 overhaul of the EU Treaties gave the EP significant powers to monitor and influence the direction of EU trade, gradually leading to a rebalancing of the executive–legislative relationship at the expense of the Council of the European Union. The unprecedented politicisation of the Comprehensive Economic Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP) between the EU and Canada, and the EU and the US respectively played an important role in solidifying this shift. The EP successfully leveraged and solidified its formal powers vis-a-vis the Council during this period to establish itself as an effective co-principal of the Commission.4 However, several questions still linger as to how exactly this process unfolded. In this chapter, I argue that this rebalancing act is best understood by looking at how the involvement of the EP in the policy debate around these agreements became instrumentalised by the Council in an effort to boost the legitimacy of CETA and the trade agenda in general. For all intents and purposes, CETA was seen by Member States as the gold standard of new generation free trade agreements (FTAs).5 While the EP did channel and amplify many aspects of the public’s frustrations with both CETA and TTIP (which became intertwined in the public eye), the EP’s work to reform the controversial investor state dispute settlement mechanism (ISDS) of CETA – and its ultimate approval of the agreement – established the EP as a reliable partner of the Commission and the Council. It became a partner in pursuing a relatively unchanged trade policy agenda which remains, to this day, heavily contested in several national arenas.6 This interpretation of the EP’s empowerment also implicitly means that we are not dealing with a simple case of interinstitutional bargaining or the simple spread of a new logic of appropriateness, but rather with a more nuanced process which encompasses both logics of action. On the one hand, the EP’s empowerment in trade policy is clearly a success story for the EP as an institution. On the other hand, it remains to be seen if the EP will be able to effectively channel public sentiments – such as the apparent public push to include more effective climate action or labour rights provisions in agreements – into the EU trade decision-making process. In the wake of the landmark ruling of the European Court of Justice (ECJ) on the EU–Singapore FTA, the responsibility of the EP to become more responsive to the public is especially important given that national parliaments – with some exceptions – can only influence EU trade policy through feeding into processes of domestic preference formation.7 In practice, however, few national legislatures have the mechanisms

3 P Márton, ‘Revisiting the European Convention: The Origins of the EP Veto over International Commercial Treaties’ (2018) 19 European Politics and Society 396; G Rosén, ‘The Impact of Norms on Political Decision-Making: How to Account for the European Parliament’s Empowerment in EU External Trade Policy’ (2016) 24 Journal of European Public Policy 1. 4 A Ripoll Servent, ‘The Role of the European Parliament in International Negotiations after Lisbon’ (2014) 21 Journal of European Public Policy 568. See also KL Meissner and G Rosén, ch 11 in this volume. For the role of national parliaments in supporting this process, see C Fasone and M Romaniello, ch 10 in this volume. 5 European Commission, ‘Joint Statement: Canada-EU Comprehensive Economic and Trade Agreement (CETA)’, europa.eu/rapid/press-release_STATEMENT-16-446_en.htm. 6 P Lamy, ‘The New World of Trade: The Third Jan Tumlir Lecture’ (2015) Jan Tumlir Policy Essays, No 01/2015 ECIPE ECONSTOR, www.econstor.eu/bitstream/10419/174861/1/ecipe-jtpe-2015-01.pdf; C Roederer-Rynning and M Kallestrup, ‘National Parliaments and the New Contentiousness of Trade’ (2017) 39 Journal of European Integration 811. 7 See Fasone and Romaniello, ch 10 in this volume, section III; and Meissner and Rosén, ch 11 in this volume.

How the Debates on Trade Policy Helped Rebalance EU Trade Policy  163 and know-how to direct or even supervise their government’s trade preferences at home. In turn, the EP needs to tread carefully to ensure that trade policy does not become a victim of some form of legislative fast-tracking by which the public debate is moved behind closed doors to informal trialogues. In order to make this argument, I first discuss the concept of political legitimacy and what it means for institutional change in the EU context. This is followed by an in-depth case study of how the politicisation of the much-debated ISDS clause of the CETA and TTIP agreements played a central part in rebalancing the executive–legislative relationship after the Lisbon Treaty through the instrumentalisation of legitimacy. The case study is based on 20 triangulated elite interviews8 conducted between 2015 and 2017. The chapter concludes with a discussion on what these tumultuous changes mean for the immediate future of EU trade policy.

II.  Seeking Legitimacy in the CCP Political legitimacy is a thorny concept. Weber’s original 1922 conceptualisation of the term as a belief prompting citizens to obey political or social hierarchies has been quite influential9 and has served as the starting point of many further debates. Political philosophers have sought to understand a wide array of questions in relation to it, yet have failed to produce a common conceptualisation or even a definition. The debate around legitimacy has focused on whether power alone can produce legitimacy,10 whether only democratic settings can produce legitimate authority11 or whether traditional and charismatic sources of legitimacy might be of equal importance even in democracies.12 The questions of how legitimacy is transferred through socialisation13 and of course how international organisations might be made more legitimate have also attracted ample scholarly attention.14 Increasingly, however, there is a desire amongst political scientists to use the term in a more analytical, empirical fashion.15 To be sure, this desire is not entirely new; Peter G Stillman of Vassar College already conceptualised the term accordingly in the 1970s.

8 Semi-structured elite interviews conducted between 2015 and 2018 with: five Members of the European Parliament (EP1-5), five Council Trade Policy, Committee members (TPC1-5), four Commission Officials (deputy-heads of units and upward) (EC1-4), one Council Official (Council Sec), three assistants to INTA member MEPs (EPa1–EPa3) and one former Member State Foreign Minister (Minister). 9 M Weber, ‘The Three Types of Legitimate Rule’ (1958) 4 Berkeley Publications in Society and Institutions 1. 10 TR Tyler, ‘Enhancing Police Legitimacy’ (2004) 593 Annals of the American Academy of Political and Social Science 84. 11 A Dahl, On Democracy (New Haven, Yale University Press, 1998); M Dogan, ‘Conceptions of Legitimacy’ in M Hawkesworth and M Kogan (eds), Encyclopedia of Government and Politics, vol 1 (New York, Routledge, 1992). 12 R Mayntz, ‘Legality, Legitimacy and Compliance’ in NC Bandelow and S Hegelich (eds), Pluralismus – Strategien – Entscheidungen (Wiesbaden, VS Verlag für Sozialwissenschaften, 2011). 13 D Easton, A Systems Analysis of Political Life (New York, Wiley, 1965). 14 T Christiano, ‘Is Democratic Legitimacy Possible for International Institutions?’ in Global Democracy. Normative and Empirical Perspectives (Cambridge, Cambridge University Press, 2012). 15 B Netelenbos, Political Legitimacy beyond Weber: An Analytical Framework (London, Palgrave Macmillan, 2016); B Weßels, ‘Democratic Legitimacy’ in M Ferrin and H Kriesi (eds), How Europeans View and Evaluate Democracy (Oxford, Oxford University Press, 2016).

164  Péter Márton Stillman16 sought to develop an analytical framework for the concept that could be of use in diverse settings beyond proverbial Western democracies. In his words, he wished to allow political scientists to operationalise the concept to make it ‘empirically useful’.17 His starting point was that definitions of legitimacy based on value positive assessments of the term – such as Carl Friedrich’s or Lipset’s ‘democratic definitions’18 – unnecessarily narrowed down our understanding of when a political system or an institution is seen to be legitimate by different segments of society. These definitions, as Stillman pointed out, are premised on the view that if an institution is not democratic, it is not legitimate. He argued that such a narrow conceptualisation was not helpful if one wished to study if and why a given institution might be considered legitimate in relation to the values of a specific polity, or group of people, the characteristics of which can vary across space and time. This observation is one that could also easily be made in relation to the debate on the concept of the EU’s democratic deficit where arguing that the EU has or does not have such a deficit is as much of a value judgement as associating the legitimacy of a political system solely with one set of values.19 In order to bridge the problem of value-positive conceptualisations yet avoiding a purely proceduralist understanding of legitimacy as that proposed by Hans Kelsen,20 Stillman set out the following definition: ‘a government is legitimate if and only if the results of governmental output are compatible with the value pattern of [society and] the relevant systems’.21 The definition is similar to value-positive definitions only inasmuch as it ties legitimacy to values. Yet in applying a domain-specific understanding of values, there is inbuilt flexibility here. While it may not have been Stillman’s intention, his approach allows for the sidestepping of the democratic deficit debate and is generally instructive when assessing institutional change in the context of European integration. Taking the view that the architects of ‘integration by stealth’22 or the ‘permissive consensus’23 – the decades-long period where integration unfolded without much public attention – developed an in-group specific understanding of legitimacy for their actions, we can then go on to make the claim that their actions were primarily in line with their own value patterns, which were premised on functionalist cooperation and economic integration – something that they conceived to be a public good. It follows from this discussion that such a perception can be challenged over time. This is apparent when one looks at the general state of affairs of European integration today. However, it is also interesting to see how the most constrained areas of integration

16 PG Stillman, ‘The Concept of Legitimacy’ (1974) 7 Polity 32. 17 ibid 32. 18 CJ Friedrich, Man and His Government (New York, McGraw-Hill, 1963); S Martin Lipset, ‘Some Social Requisites of Democracy: Economic Development and Political Legitimacy’ (1959) 53 American Political Science Review 69. 19 A Follesdal and S Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2006) 44 Journal of Common Market Studies 533; A Moravcsik, ‘Reassessing Legitimacy in the European Union’ (2002) 40 Journal of Common Market Studies 603. 20 Hans Kelsen, General Theory of Law and State (Cambridge, MA, Harvard University Press, 1949) 112–15. 21 Stillman (n 16) 39. 22 G Majone, Dilemmas of European Integration: The Ambiguities and Pitfalls of Integration by Stealth (Oxford, Oxford University Press, 2010). 23 L Hooghe and G Marks, ‘A Postfunctionalist Theory of European Integration: From Permissive Consensus to Constraining Dissensus’ (2009) 39 British Journal of Political Science 1.

How the Debates on Trade Policy Helped Rebalance EU Trade Policy  165 are also the least Europeanised. From foreign policy to questions relating to the rule of law or an EU-level social policy, the constraining dissensus so aptly described by Hooghe and Marks24 seems to persist, while economic integration continues to be deepened and trade agreements continue to be made. This is the case because trade policy – like other deeply integrated policy areas – has been historically premised on the notion of producing consensually accepted public goods.25 While the policy preferences of EU decision-makers did shift between protectionism and market liberalisation for much of the twentieth century, the creation of the WTO established a common denominator rooted in a sort of liberal consensus – a consensus of gradual market opening, which has proven to be path-dependent over time.26 Trade agreements continue to be desirable because of their ability to leave everyone better off overall.27 It seems unlikely that this logic would somehow lose ground, especially given the continued success of the EU trade policy during the last decade. Yet it is also quite apparent that the scope conditions that facilitated the frictionless reproduction of this functionalist approach to trade decision-making – similarly to integration more generally – are no longer present. Stillman’s conceptualisation rightly assumes that the value patterns of societies change over space and time. A more active and involved public has clearly started demanding more of a say in forming trade preferences. The things that the public is demanding, in turn, often if not always contradict the ‘output legitimate’28 logic that has characterised trade policy for so long. Shortly after the creation of the WTO, the appearance of the anti-globalist movement already made it apparent that free trading was all but irreconcilable with the demands to dismantle capitalism in its entirety. While not exclusively premised on such an anti-establishment starting point, the European public backlash against trade has proven to be especially sensitive to the post-WTO agenda that has sought to harmonise standards and legislation which has fuelled fears that the way of life of Europeans will be endangered.29 Accepting these scope conditions as our starting point, the question of interest becomes this: what can we expect from this clash between distinctive value patterns in the context of treaty change? Couched in the overarching decades-long efforts of the institutions to increase trust in the EU, which reach back at least to the effort of drafting a European constitution,30 it seems reasonable to assume that trade decision-makers will want to address and resolve this dichotomy. Yet efforts to do so can be expected to be constrained by the continuing belief of Member States and the Commission in the importance of rule-based trade and winning more new markets for Europe.31 In fact, we know from the robust new 24 ibid. 25 F Schimmelfennig, D Leuffen and B Rittberger, ‘The European Union as a System of Differentiated Integration: Interdependence, Politicization and Differentiation’ (2015) 22 Journal of European Public Policy 764. 26 Laursen and Roederer-Rynning (n 27); Young and Peterson (n 1). 27 RE Baldwin, ‘The Political Economy of Trade Policy’ (1989) 3 Journal of Economic Perspectives 119. 28 FW Scharpf, ‘Legitimacy in the Multilevel European Polity’ (2009) 1 European Political Science Review 173. 29 LA Buonanno, ‘The New Trade Deals and the Mobilisation of Civil Society Organizations: Comparing EU and US Responses’ (2017) 39 Journal of European Integration 795; R Dominguez, ‘TTIP: Contentious Market Regulation’ (2017) 39 Journal of European Integration 859; Laursen and Roederer-Rynning (n 2); AR Young, ‘European Trade Policy in Interesting Times’ (2017) 39 Journal of European Integration 909. 30 D Allen, ‘The Convention and the Draft Constitutional Treaty’ in Cameron Fraser (ed), The Future of Europe: Integration and Enlargement (London, Routledge, 2003). 31 Young (n 29).

166  Péter Márton institutionalist literature on institutional change that in cases where institutional rules are premised on consequentialist logic – such as in the case of the CCP – decision-makers will prefer institutional stability and calculability as opposed to wide-ranging normative debates.32 In this case, this will mean a preference for de-escalation of the tensions around trade rather than a preference for opening up a genuine debate about capitalism and globalisation. Based on these observations, the argument elaborated through the ensuing case study is that public contestation that implicitly questions the legitimacy of the EU’s approach to trade will be met by institutional responses that continue to prioritise a top-down imposed vision of what makes trade policy legitimate and desirable. This vision in turn translates into ‘instrumentalised’33 responses to the legitimacy challenge in the hope that trade decisionmakers’ views on what is appropriate can be reconciled with their interpretation of what is being demanded of them.34 This leads me to make the following conjectures: • When faced with an outside challenge to its view on trade legitimacy, the Commission – as the trade executive – will increase transparency in the procedural aspects of trade negotiations without providing more pathways for the public to feed into the formulation of policy preferences. Understandably, however, this will fail to address public concerns. • As tensions around trade escalate, Member States will in turn have a preference to step in. In the context of the general power shift towards the EP, this will involve increasing the role of the EP in the negotiating process in the hope that doing so will de-escalate the public debate around trade. The EP, as a consequentialist institution, will use this opportunity to solidify its institutional self-empowerment, leading to the rebalancing of the executive–legislative relationship.

III.  CETA, ISDS and the Instrumentalisation of Legitimacy Prior to the Lisbon Treaty, the EP’s role in ratifying international trade agreements was limited. Its ratification had been required for association agreements – which contain trade provisions – and, on a one-off basis, the ratification of the Uruguay Round Agreement.35 However, the EP was not explicitly involved in the CCP. It was not until the Lisbon Treaty that it gained a substantive role. The current Article 207(2) of the Treaty on the Functioning of the European Union (TFEU) provides the EP with co-legislative rights in adopting legislation relating to the internal market aspects of the CCP. In turn, Article 218(6) and (10) respectively provides the EP with a veto over the conclusion of international trade agreements, and a right to stay immediately and fully informed of the progress of negotiations. 32 A Héritier, ‘Covert Integration of Core State Powers: Renegotiating Incomplete Contracts’ in P Genschel and M Jachtenfuchs (eds), Beyond the Regulatory Polity? (Oxford, Oxford University Press, 2013). 33 B Netelenbos, Political Legitimacy Beyond Weber: An Analytical Framework (London, Palgrave Macmillan 2016). 34 T Lenz and L Anne Viola, ‘Legitimacy and Institutional Change in International Organisations: A Cognitive Approach’ [2017] Review of International Studies 1. 35 Young and Peterson (n 1) 33.

How the Debates on Trade Policy Helped Rebalance EU Trade Policy  167 Following the entry into force of the Lisbon Treaty, the EP skilfully used these formal licences to establish itself as a credible veto player by vetoing the controversial Anti-Counterfeiting Trade Agreement (ACTA) in 2012. While this intellectual property rights agreement between the EU and the US had initially been supported by Member States as well as a majority in the EP, the political will to conclude the agreement quickly evaporated when it was met by blanket protests across Europe. Under such circumstances, the EP’s veto was welcomed by large swathes of European civil society.36 This nascent idea that the EP could provide popular legitimacy for trade by rejecting unpopular agreements was put to the test by the public contestation of the TTIP and CETA agreements. Both were attempts at concluding deep and comprehensive new generation FTAs in line with the spirit of the post-WTO trade consensus. While the issue of investment arbitration arguably never formed a part of this agenda,37 both agreements sought to include ISDS clauses. The EU had gained investment competences with the Lisbon Treaty and sought to model its commercial policy after that of the US, which had been pursuing ISDS clauses in trade agreements for some time.38 The public criticisms against the CETA and TTIP agreements where multi-faceted, raising concerns about regulatory issues as well as standards. Nevertheless, investment arbitration took centre stage as arguably the most hotly contested issue, as demonstrated by the protests that started in 2014.39 The start of negotiations between the EU and Canada were announced during a bilateral summit in November 2009. As part of the scoping exercise,40 the parties set out to eliminate remaining tariffs and non-tariff barriers, tighten regulatory cooperation, move beyond voluntary cooperation in standards harmonisation, harmonise existing standards beyond what had been achieved at the WTO level,41 and include substantive rules on ‘investment pre- and post-establishment’42 without specifying whether this extended to provisions on ISDS. In short, the scope of the agreement was as ambitious as any FTA before it. Negotiations unfolded behind closed doors and the negotiating mandate was not made public. In 2013, the EU also started preparing negotiations for the similarly comprehensive TTIP agreement with the US. Ahead of the adoption of the EU negotiating mandate – the instructions given to the Commission that set out Member States’ offensive and defensive 36 D Matthews and P Žikovská, ‘The Rise and Fall of the Anti-Counterfeiting Trade Agreement (ACTA): Lessons for the European Union’ (2013) 44 International Review of Intellectual Property and Competition Law 626. 37 N Lavranos, ‘In Defence of Member States’ BITs Gold Standard: The Regulation 1219/2012 Establishing a Transitional Regime for Existing Extra-EU BITs – A Member State’s Perspective’ (2013) 10 Transnational Dispute Management, www.transnational-dispute-management.com/article.asp?key=1938. 38 K de Gucht, ‘The Implications of the Lisbon Treaty for EU Trade Policy’, trade.ec.europa.eu/doclib/docs/2010/ october/tradoc_146719.pdf. 39 K Hübner, AS Deman and T Balik, ‘EU and Trade Policy-Making: The Contentious Case of CETA’ (2017) 39 Journal of European Integration 843. 40 European Commission, ‘Joint Report on the EU-Canada Scoping Exercise’, trade.ec.europa.eu/doclib/ docs/2009/march/tradoc_142470.pdf. 41 Including addressing Technical Barriers to Trade (TBT) even beyond what had been agreed at the WTO level (in the TBT Agreement), as well as a separate chapter on Sanitary and Phytosanitary (SPS) issues beyond the WTO SPS agreement, opening up central and local government procurement markets beyond the planned WTO GPA agreement (which only entered into force in 2014) and going beyond the provisions of the TRIPS agreement on Intellectual Property Rights protections; ibid. 42 ibid.

168  Péter Márton interests – the draft mandate was leaked to the public. This made it clear that TTIP aimed to include an ISDS mechanism. In the same year, negotiations with Canada concluded, and through the final draft CETA agreement, it became clear that CETA also contained an ISDS clause. The politicisation of both agreements measured as a function of persistent mass protests43 was all but instantaneous. Whether owing to skilful exploitation of the anti-Americanism of large portions of German, Austrian and Dutch society by left-wing parties44 or the ‘myth of higher European standards’,45 anti-CETA and TTIP rallies quickly proliferated throughout Europe. The crux of the argument of ‘stop-TTIP’ and CETA campaigners (the two agreements being portrayed as effectively the same thing) was that ISDS was a ‘Corporate Sovereignty’ clause.46 Such a mechanism was not seen to be necessary between developed countries governed by the rule of law and well-functioning legal orders, as it would only provide an opportunity for large corporations to bully states out of regulating in the public interest by threatening arbitration.47 The intention of the Commission and Member States to include ISDS in these agreements was portrayed in national discourses as proof of politicians serving corporate interests, as opposed to ensuring the protection of democratic rights, most importantly the right of Europeans to regulate in the public interest through their elected representatives.48 In short, the politicisation of ISDS called into question the legitimacy of one of the principal goals of the agreements.

A.  Turning towards the EP Commission officials and Trade Policy Committee (TPC) diplomats were surprised by these developments. The Commission, being interested in successfully concluding agreements, looked to Member States to help counter what it perceived as falsehoods and misleading claims being made about ISDS, along with other issues ranging from the harmonisation of standards to consumer protection.49 Yet, national governments showed surprisingly little interest to face up to presenting a convincing case to electorates as to why exactly these agreements were desirable. While in Germany, which was possibly the most heavily contested national arena, the centre-right/centre-left coalition signalled its intent to engage more with public criticism to make CETA a better agreement, especially on investment

43 P de Wilde, ‘No Polity for Old Politics? A Framework for Analyzing the Politicization of European Integration’ (2011) 33 Journal of European Integration 559. 44 M Bauer, ‘Manufacturing Discontent: The Rise to Power of Anti-TTIP Groups’ (2016) 2 ECIPE Occasional Papers, ecipe.org/publications/manufacturing-discontent-the-rise-to-power-of-anti-ttip-groups. 45 Buonanno (n 29). 46 ‘Stop the Corporate Giveaway! A Transatlantic Plea for Sanity in the EU – Canada CETA Negotiations’, corporateeurope.org/sites/default/files/attachments/stop_the_corporate_giveaway_-_a_transatlantic_plea_for_ sanity_in_the_eu-canada_ceta_negotiations.pdf. 47 ‘Europeans Don’t Want Investor State Dispute Settlement in Trade Agreements’ StopTTIP, stop-ttip.org/ europeans-dont-want-investor-state-dispute-settlement-trade-agreements. 48 Bauer (n 44); Buonanno (n 29). 49 Interview with EC1, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (November 2016).

How the Debates on Trade Policy Helped Rebalance EU Trade Policy  169 protection,50 there are several telling pieces of evidence demonstrating how ill-organised and ill-prepared the coalition was to do so. For instance, the Federal Ministry of Environment provided ‘generous funding’ to the main anti-TTIP/CETA non-governmental organisation (NGO) at the heart of organising protests whose primary aim was to shipwreck CETA, not fix it.51 Furthermore, in the absence of engagement on behalf of the German government, it was the Commission that had to use its limited resources to engage local electorates in Germany and Austria, trying to dispel falsehoods and outright lies presented by the myriad of newly mushroomed civil society groups. Representatives of the federal government often neglected to show up for pre-scheduled public forum discussions, leaving Commission representatives to fend for themselves in front of large public gatherings.52 Beyond public forums, the Commission also initiated a public consultation on ISDS in TTIP, which garnered the most responses of any public consultation to date.53 Although the responses to this consultation overwhelmingly consisted of automated responses pre-composed of protest groups, the effort on behalf of the Commission to address the issue was clear,54 as was the apparent ‘wait and see’ attitude adopted by Member States, with only scarce communication throughout 2015 in support of TTIP.55 As the discourse around CETA and TTIP focused more and more on ISDS over the course of 2014 and 2015, the focus of the discussions in the EP’s International Trade Committee (INTA) also shifted towards ISDS. German and Austrian Members of the European Parliament (MEPs) from the centre-left Socialists and Democrats (S&D) Group presented similar arguments to those put forward by civil society.56 The insistence on their part that the agreement was unacceptable insofar as it contained any sort of arbitration clause increasingly pushed the centre-right European People’s Party (EPP) Group to accept the need to address public concerns on the issue.57 Civil society concerns were cited directly by S&D spokespeople in making their case for opposing ISDS on a number of occasions, calling ISDS arbitration courts ‘private tribunals’.58 In 2014, a handful of INTA S&D MEPs came out in opposition of any type of investor-state arbitration mechanism in the agreements.59

50 KA Scholz, ‘Germany Puts CETA Free Trade Deal with Canada on Hold’ Deutche Welle Online, 22 September 2014, www.dw.com/en/germany-puts-ceta-free-trade-deal-with-canada-on-hold/a-17940554. 51 Bauer (n 44) 74. 52 Interview with EC1 (n 49). 53 European Commission, ‘Report Presented Today: Consultation on Investment Protection in EU–US Trade Talks’, trade.ec.europa.eu/doclib/press/index.cfm?id=1234. 54 ibid. 55 S Morgan, ‘German Government Hits Back after TTIP Demo’ Euractiv.com (2015), www.euractiv.com/section/ trade-society/news/german-government-hits-back-after-ttip-demo. 56 Interview with EP1, ‘Semi-structured Elite Interview: The Investor-to-State Dispute Settlement Mechanism and the Politicization of Trade’ (13 April 2015); Interview with EP2, ‘Semi-structured Elite Interview: The Investorto-State Dispute Settlement Mechanism and the Politicization of Trade’ (13 April 2015). 57 Interview with EP3, ‘Semi-structured Elite Interview: The Investor-to-State Dispute Settlement Mechanism and the Politicization of Trade’ (14 April 2015); Interview with EP4, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (May 2017). 58 V Martin de la Torre, ‘Socialists and Democrats Restate Objection to Private Tribunals in Trade Deals’, www.socialistsanddemocrats.eu/newsroom/socialists-and-democrats-restate-objection-private-tribunals-trade-deals. 59 Interview with EP1 (n 56); Interview with EP2 (n 56).

170  Péter Márton In response to these concerns and due in no small part to what Commission officials describe as the constructive attitude of Bernd Lange, the INTA Committee’s Socialist Chair, the two institutions expanded upon and established a number of formalised practices to develop more concrete instruments to channel public concerns through the EP and satisfy the EP’s treaty right to ‘be fully and immediately informed’ of developments as per Article 218 TFEU.60 This was done through building on the provisions set out in two inter-institutional agreements (IIAs) between the EU institutions. Such agreements gained prominence following the Maastricht Treaty with the aim of specifying the procedural aspects of how the institutions work together to fulfil their treaty obligations to each other.61 The two IIAs that came into force following the Lisbon Treaty – the 2010 Framework Agreement between the European Parliament and the European Commission62 and the 2016 Inter-institutional Agreement on Better Law-Making63 – included specific provisions relating to the role of the EP in trade negotiations. The 2010 Agreement set out the type of information that the Commission would (and would not) make available to the INTA Committee membership during the negotiations of agreements, as well as establishing the ‘reading room’ format for sharing confidential negotiating materials with the EP.64 The 2016 Agreement re-affirmed these rights. As the CETA and TTIP agreements gained traction, the EP and the Commission looked to make better use of these agreements. This led the creation of an INTA ‘monitoring group’ for TTIP.65 Monitoring groups had been established by INTA and the Commission during the previous seventh legislative term – in relation to the EU–Korea FTA – to keep the EP informed of negotiating developments and provide for a two-way channel of communication with the Commission negotiators.66 The TTIP monitoring group proved to be immensely popular amongst INTA MEPs, and the otherwise generally ad hoc meetings became standard fixtures before and after each negotiating round on TTIP.67 With the help of these regular meetings which took place in parallel to the ongoing protests and which were, by all accounts, forums of genuine debate and discussion, the positions of INTA MEPs and the Commission gradually shifted. The concerns of civil society echoed by the S&D that ISDS was not appropriate for the EU became widely accepted by the EPP, the Commission and a growing number of Member States.68

60 Interview with EC2, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (May 2017); Interview with EC3, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (May 2017); Interview with EC4, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (May 2017). 61 For a better understanding of the systemic importance of IIAs, see M Urban, ch 2 in this volume. 62 European Union, ‘Interinstitutional Agreement between the European Parliament, the Council of the European Union and the Commission on Better Law Making’, eur-lex.europa.eu/legal-content/EN/TXT/PDF/?ur i=CELEX:32016Q0512(01)&from=EN. 63 ibid. 64 Interview with EPa2, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (May 2017); Interview with EPa3, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (May 2017). 65 Interview with EC4 (n 60). 66 INTA Committee, ‘Newsletter of the European Parliament Committee on International Trade’, www.europarl. europa.eu/document/activities/cont/201410/20141008ATT90768/20141008ATT90768EN.pdf. 67 Interview with EC4 (n 60). 68 Interview with EC1 (n 49); Interview with TPC2, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (November 2016).

How the Debates on Trade Policy Helped Rebalance EU Trade Policy  171 However, instead of effectively blocking CETA trade, MEPs proved to be more constructive. In line with the habitual dynamics of the grand coalition between the centre-left and centre-right,69 following the debates in the INTA Committee, the EP passed a resolution – on TTIP in name – in July 2015, in which it accepted in principle the inclusion of arbitration, while calling on the Commission to reform the proposed ISDS mechanism to, amongst other things, set up a permanent arbitration court in place of ad hoc tribunals, to include a code of conduct for arbitrators and to introduce an appellate mechanism for verdicts.70 Seemingly then, the EP had become an active part of the debate, taking the initiative to respond to NGOs ISDS concerns at a time when Member States by and large failed to do so in domestic arenas. Yet the EP was working towards salvaging rather than wrecking the agreement, while the latter became the main goal of protesters. Whereas during the debate on ACTA the agreement eventually lost almost all support from trade decision-makers across the institutions, CETA was increasingly attaining symbolic value for trade policy as a whole. As the first truly new generation FTA, its failure would have been nothing short of ‘traumatic’ for the CCP.71 Sure enough, the Commission, as the trade policy executive, was quick to respond, seeing the EP’s resolution as a window of opportunity to fix investor arbitration. TTIP negotiations were still ongoing, yet CETA negotiations had already been concluded, with the agreement undergoing legal review. The Commission nevertheless developed a proposal for an ‘Investment Court System’ (ICS),72 which it proposed putting into CETA in place of the original ISDS mechanism. This proposal, while leaving many substantive details to be worked out following the ratification of the agreement, in principle addressed all the main concerns signalled by the EP. Crucially, the Canadians were willing to accept the change without wanting to re-open negotiations. The Commission and the Member States were satisfied with the ICS system, yet it is hard not to note a sense of cynicism in the evaluations of ICS given by Council Trade Policy Committee (TPC) officers: The ICS compromise, in a sense painted us into the corner … we might lose leverage in this field. Australia, New Zealand, Japan are already signalling that they don’t want this. ICS was at the end of the day a way of addressing the concerns about ISDS.73 I don’t see why the old type of ISDS was a problem, to be honest although if it is transparency and a reduction of penalties [that it is supposed to achieve] then I guess the new system is better.74 ICS is a step up, it makes the whole notion [of investor-to-state arbitration] a bit more palatable. But the idea is the same.75 69 S Hix, A Kreppel and A Noury, ‘The Party System in the European Parliament: Collusive or Competitive?’ (2003) 41 Journal of Common Market Studies 309. 70 European Parliament, ‘European Parliament Resolution of 8 July 2015 Containing the European Parliament’s Recommendations to the European Commission on the Negotiations for the Transatlantic Trade and Investment Partnership (TTIP) (2014/2228(INI))’, www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP// TEXT+TA+P8-TA-2015-0252+0+DOC+XML+V0//EN. 71 Interview with TPC1, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (November 2016). 72 European Commission, ‘Commission Proposes New Investment Court System for TTIP and Other EU Trade and Investment Negotiations’, europa.eu/rapid/press-release_IP-15-5651_en.htm. 73 Interview with Council Sec, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (November 2017). 74 Interview with TPC2 (n 68). 75 Interview with TPC3, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (November 2016).

172  Péter Márton In other words, ICS was seen as a direct response to a problem and not a change in policy based on changed convictions. The preference for stability in the form of de-politicisation amounted to the instrumentalisation of dealing with discontent. With TTIP negotiations slowing down during the US presidential campaign of 2016, salvaging CETA became the primary goal of Member States and the Commission: People really wanted CETA to go through, and were willing to accommodate some of our principles and the usual way of working, and to be flexible on that, to get it [CETA] through, because it would have been really traumatic for EU trade policy, had CETA been totally blocked.76

However, Member States’ preference for de-politicisation left protesters unmoved. Stop-TTIP/CETA campaigners wanted to shipwreck CETA, seeing little difference between ISDS and ICS, and labelling the new system the ‘Zombie of ISDS’.77 Protesters were also increasingly disenchanted with the EP. In stark contrast to the praise received by MEPs during the ACTA episode, NGOs started detailing how MEPs had betrayed the public by striking a deal on ICS.78 In response, MEPs from the INTA committee, who had repeatedly quoted civil society concerns as a basis for their action on ISDS, started questioning the motives of NGOs.79 At the same time, the ICS compromise was seen to be a window of opportunity to forward the EP’s institutional standing in the CCP. Simply put, MEPs were not interested in shipwrecking CETA. Having already established a credible veto threat with ACTA, they were interested in consolidating their role in the trade policy as a co-principal of the Commission. Adopting a constructive approach to the ISDS problem was seen as a step to strengthen the EP’s institutional bona fides, showing it to be a serious and reliable partner of the other institutions: We as a Committee put political pressure on the Commission so we can practice effective control over the contents of the negotiations. Since ACTA, the Commission knows that if they don’t fulfil our expectations, we will veto them.80 [The contestation of ISDS was] the most high-profile flexing of the European Parliament’s new muscle since the application of the Lisbon Treaty, after the rejection of ACTA.81 ICS is a clear victory for the EP … little by little the EP will become more than the junior negotiating partner that it is now.82

76 Interview with TPC1 (n 71). 77 P Eberhardt, ‘The Zombie ISDS Rebranded as ICS, Rights for Corporations to Sue States Refuse to Die’, corporateeurope.org/sites/default/files/attachments/the_zombie_isds_0.pdf. 78 S2B Network, ‘Unacceptable Compromise Amendment on ISDS in TTIP – Still Allows Investors to Sue States at Private Tribunals.’ (2015), www.s2bnetwork.org/unacceptable-compromised-amendment-on-isds-in-ttip-stillallows-investors-to-sue-states-at-private-tribunals; StopTTIP, ‘European Parliament to Pass Resolution on TTIP and CETA’ (2015), stop-ttip.org/blog/european-parliament-pass-resolutions-ttip-ceta; War on Want, ‘MEPs Accused of Betraying the European People in TTIP Vote’ (2015), waronwant.org/media/meps-accused-%E2%80% 98betraying-european-people%E2%80%99-ttip-vote. 79 Interview with EP5, ‘Structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (March 2017). 80 Interview with EP4 (n 57). 81 Interview with EP5 (n 79). 82 Interview with EPa1, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (May 2017).

How the Debates on Trade Policy Helped Rebalance EU Trade Policy  173 To complete the institutional triangle, the Commission was also satisfied, claiming that the ICS compromise pursued a direction that it had wanted to pursue in any case: The EP pushed us to incorporate the ICS with the CETA agreement … It helped us do what we always wanted to do.83

In sum, dealing with the politicisation of these agreements became connected to solving the ‘ISDS issue’. The proposed ICS solution in CETA and the EP’s role in advancing it seemingly echoed civil society concerns on transparency and accountability, thus presenting a ‘cheap fix’ to the problem of boosting the legitimacy of this agreement. Member States had been reluctant to engage with their own electorates, and the EP capitalised on this in order to push for its own empowerment vis-a-vis both the Commission and Member States.

B.  The Temporary Renationalisation of Legitimacy In the face of the apparent failure of the ICS compromise to win over protesters, Member States had to seek other ways to boost the legitimacy of CETA. Seeing that the time for meaningful discourse on the merits of the agreement at a national level had passed, they opted for yet another ‘quick fix’: looking to national parliaments to rubber-stamp the agreement. The tendency in the institutional evolution of the CCP to meet the challenges of the new trading agenda by increasing competence delegation to the EU level is clear. Yet this tendency did not translate into clear-cut legal solutions. This was especially true in the case of the EU’s investment competences. While Article 207 TFEU enumerates ‘foreign direct investment’ (FDI) as an exclusive EU competence that forms part of the CCP, the Treaty did not specify the meaning of FDI. Following the entry into force of the Lisbon Treaty, the issue of investment became increasingly contentious as the Commission started challenging the right of Member States to conclude bilateral investment treaties and argued that arbitration as well as non-direct foreign investment were exclusive EU competences.84 Considering this, it is understandable that CETA’s arbitration provisions, as well as the provisions relating to non-direct foreign investment created conflict and uncertainty as to whether the EU alone had the legal basis for ratifying CETA without Member State-level ratification, which is a requirement when international agreements contain competences that are shared between Member States and the EU level. National-level ratification, in turn, exponentially increases the number of veto points to the passage of any given a­ greement. In the case of the Korea–EU FTA agreement, which garnered no particular public attention in the EU (it did not contain an investment chapter), this process of mixed ratification lasted five years. The contentious nature of the treaty stipulation is not all that surprising, given that we expect formal rules to be incomplete contracts.85 Indeed, the Commission already foresaw the need to receive authoritative interpretation of these rules prior to CETA, requesting 83 Interview with EC3 (n 60). 84 A Reinisch, ‘The EU on the Investment Path – Quo Vadis Europe? The Future of EU BITs and Other Investment Agreements’, ssrn.com/abstract=2236192 or dx.doi.org/10.2139/ssrn.223619; Lavranos (n 37). 85 Héritier (n 32).

174  Péter Márton an Advisory Opinion from the ECJ on the issue in relation to the Singapore FTA in 2014, which was similar in this regard to CETA. With the court case ongoing, the question of competence mixity was conspicuously absent from the public debate surrounding CETA. Commission and Council officials as well as MEPs and EP staffers all emphasised their clear expectations that the eventual ECJ opinion would ‘bring clarity’ to the uncertainty created by the formal treaty provisions.86 Importantly, there was an overall view that the opinion was not delivered in anticipation of the CETA ratification, but rather in light of it, given that ‘the Court is not blind to politics’.87 For the most part, Member States remained mute regarding their preferences in relation to mixity. However, throughout the course of 2016 – following the ICS compromise – French and German government officials started expressing their concerns that the changes made to the arbitration clause of CETA did not go far enough and that more national-level input would be required in order to make the agreement more palatable to the public.88 With ratification fast approaching, the Franco-German coalition pressured Commission President Jean-Claude Juncker to submit CETA to the Council as a mixed agreement rather than an EU exclusive competence agreement which went against the President’s original intention. Not only was the decision surprising to Juncker, who claimed that ‘[n]one of the member states have a problem with the content of this agreement’,89 it also surprised officials in the Council. TPC diplomats described the sudden push for mixity as a ‘last minute’ and ‘overly complex’ decision.90 Absent an ECJ opinion and given the unequivocal preference to successfully conclude CETA, this decision was seen by many as a last-ditch effort to provide a legitimacy boost to the agreement.91 Beyond the Italian government’s brief public opposition to mixity, several TPC members attested to the fact that their governments would have preferred a speedy and more certain ratification process.92 Nonetheless, the interviewees drew a rather coherent triangulated picture of what the underlying justification for mixity was in this case and why there was an agreement in the Council to support this line of action. Put simply, Member States had done little to communicate the benefits of trade and counter falsehoods. Involving the EP had apparently not helped and, as a result, they needed to shore up the legitimacy of CETA to save it from failure by symbolically passing the agreement down to the national level. Importantly, this was conceived as an exercise in rubber-stamping, with no real expectation of national parliaments substantively contributing to the debate: The EP has no say in the mandate process, so it’s their only way to shape negotiations, to influence them via resolutions. I think they did that responsibly. [But] Politically, it’s also rather evident that there … was so much public intention and debate, and so many questions of transparency, questions of accountability in the process … [that there was a] greater need, let’s say, for parliamentary

86 Interview with EC3 (n 59); Interview with EPa1 (n 82); Interview with TPC1 (n 71). 87 Interview with EC4 (n 59). 88 D Vincenti, ‘EU Leaders on Collision Course with Commission over CETA’ Euractive, 29 June 2016, www.euractiv.com/section/trade-society/news/eu-leaders-on-collision-course-with-commission-over-ceta/. 89 ibid. 90 Interview with TPC2 (n 68). 91 Interview with TPC1 (n 71); Interview with TPC2 (n 68); Interview with TPC5, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (November 2016). 92 Interview with TPC2 (n 68); Interview with TPC3 (n 75).

How the Debates on Trade Policy Helped Rebalance EU Trade Policy  175 debate, also at the national level. [If] we have national parliaments on board … there’s very deep and overall democratic scrutiny.93 The EP doesn’t really adequately represent citizens’ interests. [National parliaments] can help sell the message and explain the benefits of the agreements to the public … [they] won’t hinder us [sic], they are selling mostly our view. [Giving] everyone a sense of involvement, [is] worth it.94

This assumption – that by involving national parliaments, conclusion and ratification would be smooth sailing – might be a foregone conclusion.95 The circumstances under which CETA was signed are instructive in this regard. In seeking the authority to sign the agreement, the Belgian Federal Government needed to secure the approval of its six regional parliaments. The Walloon Parliament conditioned its consent to what has been described as several symbolic and redundant conditions delivered in the form of a declaration made on behalf of Belgium (and subsequently several others Member States) and an extensive interpretative instrument aiming to prejudice already negotiated parts of CETA days before its signature.96 The Wallonia episode highlighted just how easy it is to shatter the supranational trade community’s perceptions of what constitutes legitimate, good policy and is widely seen to have contributed to the eventual ECJ ruling on Opinion 2/15, which finalised the postLisbon period of institutional flux in the CCP, as well as making the EP the sole venue for legitimising future FTA agreements.

C.  Coming Full Circle: A Definitive Shift towards the EP In Advisory Opinion 2/15 on the EU–Singapore FTA, the ECJ was asked to decide whether or not the EU had the ‘requisite competences’ to conclude the FTA as an exclusive competence agreement. The Court’s long-awaited judgment was handed down on 16 May 201797 and was seen to put an end to the process of uncertainty following the entry into force of the Lisbon Treaty, becoming ‘the’ authoritative piece of case law. By all accounts, Opinion 2/15 took into consideration Member States’ clearly expressed preferences on investment in relation to CETA, while also keeping the interests of broader EU trade policy at heart. The ruling effectively delivered a bargain between the institutions. It empowered the EU in all competence areas included in new-generation FTAs (including some that were considered to be shared competences before the ruling), with the exception of investment arbitration and portfolio investment, which it effectively renationalised, thus giving a narrow interpretation to Article 207 TFEU. This meant that the ruling created a framework for a qualitatively different type of trade policy, enabling the EU to pursue the liberal trade agenda more efficiently without having to worry about national-level parliamentary ratification.

93 Interview with TPC1 (n 71). 94 Interview with TPC2 (n 68). 95 See Fasone and Romaniello, ch 10 in this volume, section III. 96 G van der Loo, ‘CETA’s Signature: 38 Statements, a Joint Interpretative Instrument and an Uncertain Future’, www. ceps.eu/ceps-publications/cetas-signature-38-statements-joint-interpretative-instrument-and-uncertain-future. 97 Opinion 2/15 of the Court (2017) ECLI:EU:C:2017:376.

176  Péter Márton In practice, the ruling presented EU trade decision-makers with two options: either continue pursuing the CETA model, which incurs national ratification, or separate out the mixed investment competences from future FTAs, creating a more Europeanised and streamlined CCP. As a long-time former Member State Foreign Minister put it: ‘2/15’s message to the Union is: okay, go out into the world! Do trade! Do it all! You should not be slaves to the Walloon Parliament.’98 Shortly after the ruling, an internal document was circulated within the Commission that laid out a new architecture for separating the mixed-competence element of trade agreements from the EU-only elements.99 In fact, the Commission also applied this approach in the case of the Singapore and Vietnam agreements. However, the decision had no bearing on CETA’s ratification process. Since then, it has become quite apparent that Member States have gone one step further. Investment arbitration clauses have seemingly been dropped from the EU’s FTA agenda, at least in respect to other functioning democracies. This is a decision that has been made easier by the EU’s recent negotiating partners, who have all shared a preference for excluding investor arbitration clauses from their agreements. The EU–Japan agreement was concluded without portfolio investment or arbitration provisions, while the EU–Australia and EU–New Zealand agreements are being negotiated without these provisions. The decision to streamline EU trade policy through re-affirming the post-WTO liberal consensus is convenient for several reasons. It allows the EU as a whole to develop into a more efficient and credible trade partner, without risking a situation where anti-trade NGOs from any one Member State (or region) could effectively capture and hold trade policy hostage. It also allowed Member States to take back ownership – at least in part – of investment competences, which had been a source of inbuilt tension. Lastly, the ejection of ISDS also allowed for the ever so allusive de-escalation of the public contestation of trade. As one INTA MEP put it, ‘the split helps manage political difficulties. Trade agreements will be easier to conclude. This way we will be able to avoid difficult political debates’.100 Where the post-Lisbon system had failed to provide the trade establishment with an effective toolkit to reconcile its view of trade legitimacy with the challenge posed by public contestation, Opinion 2/15 allowed the same decision-makers to re-affirm their longstanding understanding of trade legitimacy – for the moment. In the equation created by this ruling, the Commission has gained more credibility on the international stage as a negotiator acting on behalf of Member States, while the EP’s role as a sufficiently legitimate forum to oversee trade has also been re-affirmed, despite its support of CETA in the face of popular sentiment. This speaks to a broader point: while the constraining dissensus may well persist in many policy areas, the CCP, which has long been an economic core of integration, seems more resilient in the face of politicisation.

98 Interview with Minister, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (May 2017). 99 F Montanaro and S Paulini, ‘United in Mixity? The Future of the EU Common Commercial Policy in Light of the CJEU’s Recent Case Law’ EU Trade Law (2018), www.ejiltalk.org/ united-in-mixity-the-future-of-the-eu-common-commercial-policy-in-light-of-the-cjeus-recent-case-law. 100 Interview with EP6, ‘Semi-structured Elite Interview: Perceptions of Legitimacy and Politicization in the EU, the Case of CETA’ (May 2017).

How the Debates on Trade Policy Helped Rebalance EU Trade Policy  177

IV. Conclusions This chapter set out to explore the questions of what type of institutional responses were given by EU trade decision-makers to the legitimacy challenge posed by the politicisation of trade in relation to the CETA and TTIP agreements and if (and how) these responses affected the inter-institutional balance of power in the CCP. The idea of achieving legitimacy seems to take on an instrumentalised quality in the face of politicisation, with the institutions working in tandem to solve the problem with as little effort as possible rather than dedicating time and resources to engage in genuine political debate on the merits of trade. The winner of this drive to safeguard the EU’s trade preferences from the public has clearly been the EP. Through engaging with the Commission and Member States in a constructive manner to try and fix the most contentious parts of CETA, the EP established itself as a reliable partner for supporting the post-WTO trade agenda. This rebalanced executive–legislative relationship, which has given the EP more power to the detriment of both the Commission and Member States, both of which now have to take the EP’s preferences into account during negotiations, is no doubt good for the transparency of trade policy. The procedures put in place during the politicisation of CETA to keep information flowing to the EP remain in place, providing MEPs with the opportunity to feed directly into the Commission’s thinking on trade. Yet the transmission belt between more parliamentary empowerment and more public accountability for European policies is not always straightforward. The proliferation of the informal legislative fast-track procedure in the EP – which by some estimates covers over 80 per cent of legislative files – has left some questioning the level of transparency that the EP can actually deliver to the public.101 It is true that the negotiation of trade agreements does not fall under the same legal category as most other EU legislation, given that the EP is not a co-legislator here. As a result, there are no trialogues relating to trade agreements. Nevertheless, the monitoring groups for individual trade agreements that the INTA Committee maintains serve as forums for the EP to delineate its policy preferences to the Commission. These monitoring groups, like trialogues, are not open to the public and, as such, there is no good way to gauge the types of debates that go on there. Instead of potentially de-politicising trade through proving to be nothing more than a reliable partner to the Commission and Member States, the EP should help spur on the debates on the myriad of issues that new-generation FTAs cover, such as how trade agreements can be made to deliver benefits to small and medium-sized enterprises, how the EU’s trade policy can be used to diffuse European values, and how much of a role trade can take in combating the impending climate catastrophe of our times.

101 A Héritier and C Reh, ‘Codecision and its Discontents: Intra-organisational Politics and Institutional Reform in the European Parliament’ (2012) 35 West European Politics 1134.

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10 A Temporary Recalibration of Executive–Legislative Relations on EU Trade Agreements? The Case of National and Regional Parliaments on CETA and TTIP CRISTINA FASONE AND MARIA ROMANIELLO*

I. Introduction On 14 October 2016, the initial refusal by the Walloon Parliament to grant the authorisation to the Federal Government to sign the Comprehensive Economic Trade Agreement between Canada and the EU before (CETA) triggered much discussion regarding the ‘international powers’ enjoyed by this Parliament, the democratic legitimation of that trade agreement and the effects of the parliamentary veto. Can a regional parliament within a European Union (EU) Member State legitimately block the very long process leading to the conclusion of a fundamental trade agreement for the EU and for third countries? This question lies at the intersection between the demands of civil society for enhanced transparency, access to information and parliamentary scrutiny of the executive on the negotiations on EU trade agreements, and the need to conclude trade agreements which are crucial for the EU to run as smoothly as possible once they have been agreed within the Council of the European Union. However, the need for strengthened democratic control is not easy to combine with the secrecy of the treaty negotiations that is instrumental to reaching a common deal. Likewise, this issue inevitably affects the power balance between legislatures and executives in the EU at any level of government. Indeed, in foreign affairs, executives are, by default, in a predominant position and typically legislatures lag behind, affected by information asymmetries. In this field, parliaments normally get to know what their governments want to disclose.

* Although this chapter is the outcome of the joint work of the two authors, and they have jointly drafted the conclusion, Cristina Fasone authored sections I and III and Maria Romaniello sections II and IV.

180  Cristina Fasone and Maria Romaniello This chapter draws on this volume’s analytical and theoretical framework based on the traditional (im)balance in executive–legislative relations in the EU and aims to assess the conferral and actual exercise of powers by national parliaments (NPs), placed at the different levels of government, vis-a-vis domestic executives, 10 years after the Lisbon Treaty and following the many crises that the EU has gone through,1 with specific reference to the new generation of comprehensive trade agreements. It reflects on whether a recalibration of the executive–legislative relations on CETA and the Transatlantic Trade and Investment Partnership (TTIP) in particular has occurred to the benefit of NPs, on how the change was brought about, on the role of mobilisation of civil society and the emulation effect amongst parliaments, and finally concludes on the medium-term perspective of this shift, which appears to be mainly temporary and closely linked to the special content and context of TTIP and CETA. This chapter argues that the role of national (and regional) parliaments, alongside the European Parliament (EP), both individually and collectively through interparliamentary cooperation, has been crucial in order to enhance the transparency of the information surrounding the negotiations of recent EU trade agreements like TTIP and CETA, and that in turn this has led to a rebalancing, to a certain degree, of their relations with the executive branch.2 This struggle by NPs for the disclosure of information has materialised in a more effective scrutiny of the national governments and EU institutions, and has been to a large extent successful in light of the powers that national and (just some) regional parliaments can claim during the ratification procedure of EU mixed agreements, ie, agreements that require approval at both the national and European levels. In other words, by using the threat of a subsequent veto on the ratification,3 national and regional legislatures, with the support of the EP and civil society, have managed to increase their influence over the governments at the ex ante stage of the negotiation and conclusion of trade agreements. The strategy pursued by NPs to gain access to information and improve their scrutiny capacity, also due to domestic constitutional constraints, has been twofold: on the one hand, they have acted as individual actors vis-a-vis their governments; on the other hand, they have tried to coordinate their position with those of other parliaments in order to both collect missing information to be constantly updated following developments in negotiations and to maximise the chance of obtaining the qualification of CETA and TTIP as mixed agreements. Although the exercise of the veto to the ratification is, in theory, possible for any of the 40 parliamentary chambers involved in the EU (in addition to the regional parliaments in Belgium), in practice it can be seen as a last-resort political weapon, as it would put the international obligations to which their own government had committed in jeopardy. Moreover, for the credibility of the state at the international level, the stability of executive–legislative relations, and especially for the government, the involvement of other actors during the ratification process can also be problematic, for example, where constitutional courts are asked by parliamentary minorities to check the compliance of the trade agreements with the constitution.

1 See D Fromage and A Herranz-Surrallés, Introduction in this volume. 2 See K Meissner and G Rosén, ch 11 in this volume; C Roederer-Rynning and M Kallestrup, ‘National Parliaments and the New Contentiousness of Trade’ (2017) 39(7) Journal of European Integration 815. 3 A Young, ‘European Trade Policy in Interesting Times’ (2017) 39(7) Journal of European Integration 909.

Executive-Legislative Relations on EU Trade Agreements  181 The chapter proceeds as follows. First, it briefly considers the position of parliaments, taking into account the qualification of the EU trade agreement as mixed or ‘EU only’. Second, it looks at national constitutional arrangements, which can expand or restrict the power of NPs to intervene ex ante and ex post on an EU (mixed) trade agreement, defining the relations with the executive and whether regional parliaments have a say in the process. Third, the practice of the use of these powers by national and regional legislatures is examined with regard to CETA and TTIP, the latter having received ‘twice the level of attention as the CETA negotiations’,4 although it has never been concluded. Fourth, it highlights the contribution of interparliamentary cooperation in this area in three main domains: favouring the disclosure of information on trade agreements in the making; struggling for their acknowledgement as mixed agreements; and, for NPs, taking advantage of the strengthened position of the EP on trade agreements post-Lisbon due to the new provisions enshrined in EU primary law (see, in particular, Articles 207 and 218 of the Treaty on the Functioning of the European Union (TFEU)) as well as in light of the 2010 Framework Agreement with the Commission and the setting up of the European Parliamentary Research Service (EPRS) in 2013.5

II.  On the ‘Mixity’ of EU Trade Agreements and the Powers of Parliaments Which levels of parliament (the EP alone or alongside NPs) are involved in an EU trade agreement is ultimately determined by the content of the agreement itself and by its qualification as ‘EU only’ or ‘mixed’ by the Commission (and, if asked, by the Court of Justice of the European Union (CJEU)). The nature of an international treaty concluded by the EU is defined by the competences concerned by the agreement. If the agreement only touches upon EU exclusive competences, NPs are not asked to authorise the ratification of that treaty and the EU alone, through its institutions, can negotiate, conclude and approve the treaty. In this case, the EP acts as the sole veto player amongst parliaments. However, so far, all of the most recent EU comprehensive trade agreements have been considered by the European Commission – sometimes with reluctance – as mixed agreements,6 hence implicitly granting NPs the authority to have a final say on the entry into force of the agreement. It goes without saying that NPs do have a strong incentive in pushing for the acknowledgement of a trade agreement as mixed. When the negotiations start, it is not immediately clear whether the EU trade agreement is mixed or not. The decision on the nature of the agreement is taken only when the treaty has been finalised because it is at that stage that the content of the treaty is defined following a proposal by the Commission that can be changed by the Council

4 Roederer-Rynning and Kallestrup (n 2) 818. 5 Framework Agreement of 20 November 2010 on relations between the European Parliament and the European Commission, OJ L304/47, subsequently revised in 2018, paras 23–29 and 45–50. 6 D Kleimann and G Kübek, ‘The Signing, Provisional Application, and Conclusion of Trade and Investment Agreements in the EU. The Case of CETA and Opinion 2/15’ (2016) City University London, 2, www.city.ac.uk/__ data/assets/pdf_file/0008/337319/The-Case-of-CETA-and-Opinion-Kleimann-and-Kubek.pdf.

182  Cristina Fasone and Maria Romaniello only by unanimity. For example, on CETA, once the text of the agreement had been consolidated and translated into the official languages, on 5 July 2016 the Commission adopted draft proposals for Council Decisions on the signature, provisional application and conclusion in which it eventually supported the idea of CETA as a mixed agreement (see further section IV.A below). These uncertainties regarding the qualification of EU trade agreements have only been partially set aside by the opinion of the CJEU on the EU–Singapore Free Trade Agreement (EUSFTA),7 negotiations for which were concluded on 17 October 2014. Under EU law, there are avenues that are apt for circumventing the delayed entry into force that a mixed agreement could face because of national legislatures’ involvement. While waiting for the authorisation of NPs, it is possible to provisionally apply the norms of the trade agreements that fall within the exclusive competence of the EU, thus waiving, only for those provisions, the need to cope with the (potential) lengthy procedures of national ratifications. Indeed, the way in which a Member State ratifies an EU (mixed) trade agreement as well as any other international agreement depends solely on national constitutional requirements. The problem with the timing of the entry into force of an EU mixed agreement – and the reason why provisional application is normally used – is that between the conclusion and the final entry into force of such an agreement, one or more years can elapse because of delayed authorisation by 27, national parliaments plus regional parliaments in states like Belgium. For example, CETA has been provisionally applied as of 21 September 2017, but it will – to use the Commission’s words8 – only ‘fully and definitely’ enter into force once all Member States have completed the ratification, which most likely will not happen for a few months, given the internal opposition to the agreement in many countries both within parliaments and in civil society. Shifting from the domestic level to the supranational level, it should also be considered that the Lisbon Treaty introduced many substantial changes in terms of the powers conferred on the EP in EU trade agreements (see section I above).9 The EP has no formal role in initiating and conducting negotiations, but it is called upon to give its consent on the final text of the trade agreement and a legally binding obligation to keep the EP informed at

7 Opinion 2/15 of the Court (Singapore) [2017] ECLI:EU:C:2016:992. See M Cremona, ‘Shaping EU Trade Policy Post-Lisbon: Opinion 2/15 of 16 May 2017: ECJ, 16 May 2017, Opinion 2/15 Free Trade Agreement with Singapore’, (2018) 14(1) European Constitutional Law Review 231; D Sarmiento, ‘The Singapore Silver Bullet’ Verfassungsblog, 17 May 2017, verfassungsblog.de/the-singapore-silver-bullet; D Thym, ‘Mixity after Opinion 2/15: Judicial Confusion over Shared Competences’ Verfassungsblog, 21 May 2017, verfassungsblog.de/mixity-after-opinion-215-judicial-confusion-over-shared-competences; The Investor-State Dispute Settlement – as well as non-direct foreign investments – was at the centre of the contention and the CJEU somewhat ‘reassured’ the Member States by saying that it fell under the EU shared competences. Similarly controversial was the CETA’s Investment Chapter, especially the CETA’s Investment Court System, which the CJEU confirmed being compatible with EU law in Opinion 1/17 of the Court [2019] ECLI:EU:C:2019:341. 8 See the European Commission’s press release of 20 September 2017 announcing the provisional entering into force of the CETA: europa.eu/rapid/press-release_IP-17-3121_en.htm. Canada completed the ratification of the agreement on 16 May 2017, while at the time of writing, only 14 Member States had completed the ratification process: Austria, Croatia, the Czech Republic, Denmark, Estonia, Finland, Latvia, Lithuania, Luxembourg, Malta, Portugal, Slovakia, Spain and Sweden. 9 G Rosén, ‘A Match Made in Heaven? Explaining Patterns of Cooperation between the Commission and the European Parliament’ (2016) 38 (4) Journal of European Integration 409; M Romaniello, ‘The International Role of the European Parliament: The Swift Affair and the “Re-assessed” European Institutional Balance of Power’ (2013) 5(1) Perspective on Federalism 97.

Executive-Legislative Relations on EU Trade Agreements  183 all stages of the procedure has been established.10 Such an obligation has been ‘entrenched’ into the 2010 Framework Agreement on relations between the EP and the Commission,11 and the EP can rely on the newly established EPRS for independent analyses and studies on any subject matter, including international agreements. Today the EP’s approval is required for all international agreements on common commercial policy and on agreements covering fields in which the ordinary legislative procedure is applied. Thus, except for the Common Foreign and Security Policy (CFSP), the new setting has established ‘a sort of “parallelism” between the internal and external competences’.12 These reforms have undeniably increased the role of the EP in the international arena. This new protagonism of the EP on EU trade agreements has certainly caught the attention of NPs, which have increasingly tried to cooperate with it in order to create a parallel channel of information next to their own executive for the sake of better scrutinising the position of their government vis-a-vis the trade agreements under negotiations.

III.  National and Regional Parliaments’ Individual Powers: Ex Ante Scrutiny and the Challenges to Ratification National parliaments can be involved in EU trade agreements in two complementary ways: either ex ante before the Treaty is signed by scrutinising and trying to influence the action of their own government at the EU level, particularly in the Council, taking into account that all Member States – except Cyprus – provide for the confidence relationship between either or both chambers of parliament and the prime minister or government; or ex post once the Treaty has been signed and the ratification, which is pending, must be authorised by NPs. However, it should be recalled that the degree and extent to which a national parliament is actually involved depends on the nature of the EU trade agreement at stake, whether it is a mixed or an EU only agreement, and on domestic constitutional and institutional arrangements.

A.  Domestic Constitutional Arrangements Besides EU legal constraints on trade agreements, national constitutional arrangements are very significant. Indeed, they can make the entry into force of a mixed trade agreement 10 On this point, see the decisions of the CJEU in Case C-658/11 Parliament v Council (Mauritius), ECLI:EU:C:2014:2025 and Case C-263/14 Parliament v Council (Tanzania) [2016] ECLI:EU:C:2016:435. 11 Framework Agreement on relations between the European Parliament and the European Commission [2010] OJ L 304/47, 20 November. On the disclosure of sensitive information by the Council, see Interinstitutional Agreement of 20 November 2002 concerning access by the Parliament to sensitive information of the Council in the field of security and defence policy [2002] OJ C298/1, 30 November; Inter-institutional Agreement of 12 March 2014 concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy [2014] OJ C95/1, 1 April. 12 D Thym, ‘Parliamentary Involvement in European International Relations’ in M Cremona and B De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 201–32.

184  Cristina Fasone and Maria Romaniello more or less likely and swift. To start with, some national constitutions make the authorisation compulsory by an act of parliament in order to ratify a treaty like EU (mixed) trade agreements, because of their political nature or because they require arbitration or legal settlements.13 By contrast, in other countries like Spain, such a constitutional requirement cannot be immediately detected. Indeed, Article 93 of the Spanish Constitution prescribes the approval of an organic law by the Parliament to authorise the conclusion of treaties which confer powers granted by the Constitution to international organisations or institutions. However, in the case of CETA, Article 94.1 in combination with Law no 25/2014 was applied.14 Indeed, this article requests a prior authorisation by the Cortes Generales for treaties of a political nature, for treaties that can affect fundamental rights and duties, and for treaties which need legislative measures of execution or which entail amendment to legislation that is in force. Interestingly, the last sentence of Article 94 of the Spanish Constitution establishes a right for the two parliamentary chambers to be ‘informed forthwith’ on the conclusion of other treaties or agreements. Even if the constitution of a Member State does not directly provide its national parliament with a veto power over trade agreements, such power can be acknowledged by legislation, organic laws or other legal measures.15 The 15 unicameral parliaments existing in the EU,16 as well as the Parliaments of Austria, the Czech Republic, France, Germany, Italy, Poland, Romania, Spain and the Netherlands, are mandatorily involved in the process of the entry into force of an EU mixed trade agreement, albeit to a different extent. While in Italy the involvement means that the Parliament is asked to authorise the ratification of the agreement by law, in France the Parliament can authorise the ratification or simply approve the agreement.17 Moreover, in some bicameral legislatures, the upper chambers are not involved. For example, in Belgium, after the 2014 constitutional reform,18 only the House of Representatives needs to approve a trade agreement at the federal level. The Irish and Slovenian upper chambers do not contribute together with the lower chambers to the ratification of international agreements.19

13 eg, art 53 of the French Constitution and art 80 of the Italian Constitution. 14 See also the Opinion of the Spanish Council of State 19/2017 of 9 February 2017 on the domestic procedure applicable to CETA. 15 Constitutional case law is also relevant here: the jurisprudence of the German Constitutional Court and of the Supreme Court of Estonia on the Treaty on the European Stability Mechanism making compulsory the ex ante parliamentary authorisation on the negotiation of Memoranda of Understanding with bailout countries and the ex post parliamentary approval of the Memorandum of Understanding, even if it does not deal with trade agreements, is important in relation to the role of NPs on international treaties and their execution. See C Fasone, ‘Eurozone, Non-Eurozone and “Troubled Asymmetries” among National Parliaments in the EU: Why and to What Extent This is of Concern’ (2014) 6(3) Perspectives on Federalism 1. 16 The Parliaments of Bulgaria, Croatia, Denmark, Estonia, Greece, Cyprus, Hungary, Finland, Latvia, Lithuania, Luxembourg, Malta, Portugal, Slovakia and Sweden. 17 See EPRS Briefing on ‘Ratification of International Agreements by EU Member States’ (2016), europarl. europa.eu/RegData/etudes/BRIE/2016/593513/EPRS_BRI(2016)593513_EN.pdf, 2; A Eschbach, ‘The Ratification Process in EU Member States: A Presentation with Particular Consideration of the TTIP and CETA Free Trade Agreements’, University of Cologne, Institute for Comparative Public Law and International Law, 1 July 2015, ttip2016.eu/files/content/docs/Full%20documents/Eschbach_Ratification-TTIP-CETA-in-EU-MS.pdf. 18 See art 167(2) of the Belgian Constitution as revised. 19 This is why recent studies on the rate of assertion by NPs on EU trade agreements have found out that some upper chambers have been much less active than lower chambers. See Roederer-Rynning and Kallestrup (n 2) 818.

Executive-Legislative Relations on EU Trade Agreements  185 Another dimension that is important to explore when dealing with the role of NPs in the approval or ratification of trade agreements is whether regional parliaments with legislative powers have a say within the national procedure and if they can act as veto players. In the EU, seven Member States attribute legislative powers to all regional parliaments or just to some of them: Austria, Belgium, Finland, Germany, Italy, Portugal and Spain. Belgium is the only country where regional parliaments – or, rather, the parliaments of the regions and of the communities – must approve an international agreement20 of which the federation is a party if their legislative competences are concerned, while regions conclude international agreements on their own within their exclusive competences (by contrast, in Austria and Germany, an international agreement concluded by a Land needs the approval of the Federal Government).21 Therefore, depending on the competences affected, in Belgium up to eight parliaments22 can be involved in the ratification of EU mixed trade agreements and also have a say in their execution and application. It follows that with multiple veto players in a single country, the ratification of a trade agreement might not be smooth. In the other countries, the role of regions is limited to the information on negotiation (in Spain, for example).

B.  National and Regional Parliaments’ Use of Their Powers on EU Mixed Trade Agreements During Their Negotiation and Conclusion i.  Access to Information and Scrutiny The involvement of NPs in EU mixed trade agreements while the negotiations are ongoing varies considerably depending on the executive–legislative relationship, the scrutiny powers of a parliament in general and in EU and international affairs in particular. Also prompted by the mobilisation of civil society on the issues covered by the agreement,23 NPs have been very active on TTIP.24 They have published several reports on this ‘agreement in the making’, in particular the UK House of Lords’ European Union Select Committee – as we refer to the period prior to Brexit here – and even the Italian Chamber of Deputies and Senate, which have been otherwise categorised as chambers ‘engaged’ discontinuously

20 Article 167(3) of the Belgian Constitution; Accord de coopération entre l’Etat fédéral, les Communautés et les Régions, relatif aux modalités de conclusion des traités mixtes, 8 March 1994 (MB 19 July 1996). 21 Article 32(3) of the German Basic Law; art 16 of the Austrian Constitution. 22 The House of Representatives at the federal level; as for Regions: the Parliaments of Flanders, Wallonia and Brussels-Capital; as for the Communities, the legislatures of the French Community, of the German-speaking Community, of the French Community Commission (COCOF) and of the Common Community Commission (COCOM). Indeed, the Flemish Parliament encompasses representation of the Flemish Community, of the Flemish Community Commission and of the Flemish region. 23 M Wendel, ‘International Trade Agreements and Democratic Participation’ (2017) European Yearbook of International Economic Law 61. 24 See D Jancic, ‘TTIP and Legislative–Executive Relations in EU Trade Policy’ (2017) 40(1) West European Politics 202, who considers that the scope of the parliamentary control on trade agreements and in particular on TTIP has moved beyond the mere scrutiny of the government and has encompassed EU transatlantic and trade policies. Much more severe is, instead, the assessment on the quality of the democratic control on TTIP and CETA by E-U Petersmann, ‘Democratic Legitimacy on CETA and TTIP Agreements’ in T Rensmann (ed), Mega-regional Trade Agreements (Baden-Baden, Springer, 2017) 37–58.

186  Cristina Fasone and Maria Romaniello with EU trade agreements.25 Experts, officials and commissioners have been heard before the committees of NPs: for example, Trade Commissioner Cecilia Malmström has been invited for hearings before at least 15 parliaments.26 During the negotiation stage of both CETA and TTIP, the recurrent claims of NPs individually as well as collectively (see section IV below) towards their governments and the EU institutions, especially the Commission, included the acknowledgement of those treaties as mixed agreements – successfully obtained in relation to CETA – and more extensive access to information in order to closely follow the developments on the draft agreements. In order to meet the concerns expressed by national MPs regarding the lack of information during the negotiations, in 2015 the decision was taken to open reading rooms allowing members of NPs to read the provisional version of the TTIP.27 Such a development could not be taken for granted, considering that the European Commission and the US government had initially agreed to reserve access to negotiating documents only to members of the EP and to national civil servants whose names had to be previously communicated to US authorities for authorisation and that could consult the documents within the US embassies in the different Member States. By contrast, members of NPs had been excluded from accessing these documents.28 However, beyond their routine scrutiny on the executive, domestic legislatures’ insistence on the disclosure of information on TTIP negotiations has at least prompted governments in some Member States (eg, France and Germany), with the agreement of the Commission and the US authorities, to let Members of Parliament (MPs) (depending on the country, all MPs were given access or just some of them) read the provisional versions of the TTIP, even though the consultation of negotiating documents was precluded, except for those in the consolidated version (see section I below). Moreover, in their capacity to issue binding instructions to their governments when dealing with EU and foreign affairs, a number of NPs – like the Estonian Riigikogu, the Lithuanian Seimas, the Danish Folketing, the Finnish Eduskunta and the Swedish Riksdag – approved parliamentary mandates to be followed during the negotiations on TTIP and CETA, with the possibility to hold the government accountable through debates, hearings and resolutions about the implementation of this mandate.29 Even when devoid of such power, some parliamentary chambers have managed to obtain the exclusion of selected (undesired) clauses from EU trade agreements. The French National Assembly successfully asked to exclude cultural and audiovisual services from TTIP and requested the government to use its veto in the Council should this proposal

25 See Roederer-Rynning and Kallestrup (n 2) 817–18. 26 See Meissner and Rosen (n 2); and C Caruso and M Morvillo, ‘Procedural Strengths, Political Weaknesses? Transparency and Parliamentary Oversight in TTIP Negotiations’ (2016) 4 Rivista AIC 1, 19–20. 27 Meissner and Rosen (n 2); M Morvillo, ‘Quanta (e quale) trasparenza nella negoziazione del Transatlantic Trade and Investment Partnership?’ (2016) Forum di quaderni costituzionali 4. 28 Italian Senate, ‘La trasparenza dei negoziati’, 2014, www.senato.it/japp/bgt/showdoc/17/dossier/929588/index. html?stampa=si&part=dossier_dossier1-sezione_sezione3-h2_h211. 29 Jancic (n 24) 209.

Executive-Legislative Relations on EU Trade Agreements  187 not be accepted.30 These sectors were eventually removed from the draft TTIP agreement, showing that an early and prompt scrutiny by parliaments, if their demands are supported by the government, can have an impact on the drafting of the treaty. The practice of parliamentary scrutiny carried out on the negotiations on TTIP and CETA shows signs of a recalibration of executive–legislative relationships in favour of the latter. The main driver for pursuing this change on the side of parliaments has been on the one hand a significant mobilisation of civil society in some countries such as Germany, while in others such as Italy, an important role was played by a process of emulation of what other legislatures were doing. The parliamentary pursuit of an enhanced level of transparency of relevant information and of stricter control over the executives has been promoted without any formal change to the rules; rather, parliaments have resorted to the ordinary procedures in place to monitor EU and international affairs.

ii.  Attempts by Parliaments to Block the Signature and Ratification of CETA By using the threat of a veto over the signature or the ratification of CETA, domestic legislatures have primarily tried to increase their ability to obtain information on the negotiations or to influence them through their executive. An actual attempt by national and regional parliaments or parts thereof to exercise such a veto has materialised in just a few cases. Indeed, a concrete threat against the signature of CETA, after seven years of negotiations eventually concluded on 14 September 2016, came from the Walloon Parliament on 14 October 2016. As anticipated (see section III.A above), the consent of regional parliaments is needed in order to ratify an international treaty that affects their competence. However, in this case the resolution passed by the Walloon Parliament by an overwhelming majority (46 to 16) was intended to prevent the Federal Government to give its consent and then sign CETA. In fact, every Parliament in Belgium also enjoys a veto power ex ante, before the Treaty is concluded. The negative vote of a single parliament, while the others had already backed up the action of the Federal Government in favour of the agreement, created serious diplomatic troubles with Canada besides blocking the whole process, which was expected to end with the signature of the agreement on 28 October 2016. Finally, CETA was signed two days later than foreseen, after an addendum to the Treaty was agreed among the contracting parties, in order to address the concerns of the Walloon Parliament (and of the President of the Region Paul Magnette, who was behind the resolution of the regional parliament), which eventually supported the new deal and its provisional application.31

30 See French National Assembly, Résolution européenne 155, 12 June 2013, point 5; Jancic (n 24) 210. 31 In addition, the Parliament of the French Community, which largely overlaps with the Walloon Parliament, and the Parliament of the Brussels Region threatened to refuse the approval of CETA at the moment of signature, besides the more renowned case of the Walloon Parliament. The tensions triggered by CETA within the Belgian Federation led the Belgian government to eventually ask the CJEU’s opinion on the compatibility of the new CETA Investment Court System with EU Treaties. See Opinion 1/17 of the Court [2019] ECLI:EU:C:2019:341.

188  Cristina Fasone and Maria Romaniello The domestic challenge to CETA, before its signature, also came from parliamentary minorities asking constitutional courts to review ex ante the constitutionality of the draft treaty. On 13 October 2016, the German Constitutional Court, Second Senate, decided on several applications for a preliminary injunction aiming to prevent the approval by the German representative in the Council of the European Union of the signature, conclusion and provisional application of CETA, initially scheduled on 18 October 2016.32 In relation to NPs, the challenge is significant because the applicants claimed the violation of the right of the German citizens to be represented through the Bundestag (Article 38(1) in conjunction with Articles 79(3) and 20(1 and 2) of the Grundgesetz (GG)), the usual standard for review when it comes to EU treaty revisions and international agreements negotiated within the framework of the EU. Moreover, in the same judgment, the Court also decided on the preliminary injunction brought by the left-wing parliamentary group Die Linke, on behalf of the Bundestag, through an Organstreit proceeding. The claim in this case was that the legislative discretion of the Parliament had been violated (Articles 23(1) and 59(2) GG). For the purposes of the preliminary injunction, the Court considered the challenges unfounded. However, it clarified that the Constitution is not violated as long as the government ensured that the Council decision on the provisional application of CETA was limited to the parts of the agreement that fall within the exclusive competence of the EU; that Germany could unilaterally terminate the provisional application of the treaty and that, for the time being, the democratic legitimacy of the agreement was sufficiently guaranteed by the CETA Joint Committee.33 Once CETA was signed, on 22 February 2017 parliamentary minorities tried to oppose the ratification of the agreement via judicial proceedings. In France, a group of more than 100 MPs from the French National Assembly challenged the constitutionality of CETA before the Constitutional Council, claiming that it entailed further transfers of powers at the international level through the mechanism of investment dispute settlement, the decision-making procedures and bodies created through the agreement, and the prospective infringement of the precautionary principle – all amounting to a violation of national sovereignty. If CETA had been declared unconstitutional, the only viable solution to ratifying the agreement would have been to amend the French Constitution. However, in its decision of 31 July 2017, the Constitutional Council stated that no clause of the agreement was in breach of the Constitution and on some claims regarding the EU competences covered by CETA, it referred to its lack of jurisdiction in favour of the CJEU.34

32 See BVerfG preliminary injunction decided on 13 October 2016 (2 BvR 1368/16, 2 BvR 1444/16, 2 BvR 1823/16, 2 BvR 1482/16, 2 BvR 3/16). 33 The CETA Joint Committee, established under art 26.1 CETA, is composed of representatives of Canada and of the EU at the executive level and is co-chaired by the Minister for International Trade of Canada and the Member of the European Commission responsible for trade. The respect of these three conditions was subsequently confirmed by Order 2 BVerfG 7 December 2016 (BvR1444/16) on urgent proceedings. 34 See Conseil Constitutionnel, Saisine 2017-749 DC [CETA] (22 February 2017); and Décision 2017-749 DC (31 July 2017). For a detailed analysis, see J Larik, ‘Prêt-à-ratifier: The CETA Decision of the French Conseil constitutionnel of 31 July 2017’ (2017) 13(4) European Constitutional Law Review 759. However, this decision did not appear to speed up the ratification. Indeed, in the French National Assembly, opponents of CETA have also advocated for the celebration of a pre-ratification referendum on the agreement, which is unlikely to be held. See Proposition de résolution de Mmes Mathilde Panot, Clémentine Autain et Bénédicte Taurine et plusieurs de leurs collègues sur l’importance démocratique de l’utilisation de la voie référendaire pour la ratification du traité de libre-échange entre l’Union européenne et le Canada n° 497 (14 December 2017).

Executive-Legislative Relations on EU Trade Agreements  189 A similar strategy was also pursued, unsuccessfully, by Podemos in Spain, both in the Congress and in the Senate, with a view to prevent the ratification of CETA, which was eventually completed in December 2017. Podemos and other minor parliamentary groups contested the democratic credentials of the decision-making bodies established by CETA as well as the autonomy of the Investment Court System. However, their proposals, first for a total rejection of the agreement and then for seeking by the Constitutional Tribunal an ex ante declaration of the unconstitutionality of CETA, failed. Unlike the French case, in order to refer the agreement to the Constitutional Tribunal, under Article 95(2) of the Constitution, a favourable vote of either chambers of Parliament was needed, but support for this was not found. Both directly (as in Belgium) and indirectly (as in France and in Germany), parliaments, parliamentary bodies or minorities have tried to veto or delay the signature and ratification of CETA. Interestingly, the relevance of the constitutional challenges brought before constitutional courts for NPs is twofold: first, they are referred by MPs, individually and in groups; and, second, they directly or indirectly aim to clarify the role and powers of NPs on CETA, and to address the problem of the democratic scrutiny over treaty implementation. Even though an actual threat to CETA ratifications does not come exclusively, and perhaps not even primarily, from parliaments and even national governments have been very vocal in this regard, the long-term process of ratification of this agreement, as the practice shows, also depends on the discontent that several national parliamentary groups across Europe have voiced. The veto power over the ratification of CETA that domestic legislatures have is a significant factor in the recalibration of the executive–legislative relationships in this domain, although it is unlikely that this veto is used by a parliament against its own government.

IV.  Interparliamentary Cooperation on CETA and TTIP Despite the significant variations among NPs as to the powers and the level of scrutiny on TTIP and CETA, especially before their signature,35 domestic legislatures have made their voice heard at the EU level. Their capacity to obtain information and to influence the negotiations of EU trade agreements was enhanced by means of interparliamentary cooperation, with important consequences at both the European and national levels. In this case, interparliamentary cooperation has represented a tool for reconciling the national and European parliamentary dimensions, which are incomplete if they stand alone.36 Therefore, ‘only a coordinated and cooperative control of the Euro-national decision-making, between NPs and the EP, can assure effective democratic oversight of the fragmented EU executive’37 and in the specific field of scrutiny on EU commercial policy,

35 Caruso and Morvillo (n 26) 19; 26th COSAC Bi-annual Report (18 October 2016) 9–14 on TTIP negotiations in particular. 36 C Fasone and N Lupo, ‘Introduction: Parliaments in the Composite European Constitution’ in N Lupo and C Fasone (eds), Interparliamentary Cooperation in the Composite European Constitution (Oxford, Hart Publishing, 2016). 37 ibid 14.

190  Cristina Fasone and Maria Romaniello ‘there is, hence, a need to combine EU and national parliamentary resources of democratic legitimacy’.38 On this point, the ‘multi-level parliamentarisation’ of EU trade politics has already been evoked.39

A.  National Parliaments’ Coordination to Seek the Acknowledgement of EU Trade Agreements as ‘Mixed’ Treaties TTIP and CETA have led to a strong politicisation of the EU’s trade policy, with an unprecedented level of participation of NPs and mobilisation of civil society, worried about their potential domestic impact. Some legislatures – the French National Assembly, the German Bundestag, the Dutch Parliament, the Luxembourgish Parliament and the Walloon Parliament – in several resolutions have repeatedly asked for the acknowledgement of CETA as a mixed agreement.40 However, besides the specific parliamentary initiatives and domestic scrutiny procedures, the cooperation among NPs on this issue was a crucial tool exploited in order to support their position at the EU level. On 25 June 2014, 20 chambers signed a letter addressed to the then Trade Commissioner Karel De Gucht asking him to consider comprehensive trade agreements like TTIP and CETA as mixed agreements41 and, even though the initial reply of the Commissioner was not really encouraging for national legislatures,42 they exerted considerable pressure on EU institutions in this respect. The most active parliaments persuaded other parliaments or chambers to sign the letter addressed to the Trade Commissioner. In 2015, the number of meetings calling for a revision of the legal status of CETA increased. The 23rd Conference of Parliamentary Committees on European Affairs (COSAC) Bi-annual Report highlighted the common parliaments’ concern that CETA and TTIP should have been considered as mixed agreements, that it was essential to mutually share information and to give them a role in the subsequent process of ratification, concerns that the Council agreed with on 13 May 2016. Again, on 22–24 May 2016, the conclusions of the EU Speakers’ Conference upon proposals of several speakers and in particular of those of the French and the German Parliaments also supported such a claim, and on 14 June 2016, a new letter was signed by 200 MPs regarding the legal status of CETA and its provisional application, which was sent to both the Council of the European Union and the European Commission.43 The letter was drafted in a side-event to the plenary COSAC meeting in The Hague and the Members of several NPs met in the Dutch Senate to discuss their worries regarding the CETA agreement. 38 Jancic (n 24) 207; and M Telò, ‘Transatlantic Partnership and Global Governance from the EU’s Perspective’ in JF Morin, T Novotná, F Ponjaert and M Telò (eds), The Politics of Transatlantic Trade Negotiations: TTIP in a Globalized World (Farnham, Ashgate, 2015) 27–44. 39 Roederer-Rynning and Kallestrup (n 2) 812. 40 EPRS, ‘Is CETA a Mixed Agreement?’ – At a Glance’ (2016), www.europarl.europa.eu/RegData/etudes/ ATAG/2016/586597/EPRS_ATA(2016)586597_EN.pdf, 2. 41 The letter is available at ipex.eu and has been considered within the framework of the political dialogue with the Commission. 42 The Commissioner affirmed that the nature of the agreement would have been determined only at the end of the negotiations and that national parliaments have many avenues for overseeing the negotiations. 43 Members of Parliaments, ‘Letter of Concern Regarding CETA, Mixity and Provisional Application’, The Hague, 14 July 2016.

Executive-Legislative Relations on EU Trade Agreements  191 The year 2016 was then characterised by unprecedented momentum in the interparliamentary cooperation in the field of EU trade policy. After two years of intensive coordination among national legislatures both with respect to their own executives and the European institutions, in July 2016, the Commission proposed the signature of CETA as a mixed agreement, though noting that this choice was only based on political opportunities, to allow for a speedy signature and to accommodate some critical positions in the Council – of France and Germany in particular – rather than on legal considerations.44 Even if they were not decisive for the final qualification of CETA as a mixed treaty, the joint initiatives of NPs have nevertheless influenced the public debate, creating a pressure group on the Commission, which eventually welcomed the contribution of domestic legislatures as a positive feature in spreading the knowledge of the content and the implications of the agreements among EU citizens.

B.  National Parliaments’ ‘Collective Enterprise’ to Access Information and the Support of the European Parliament In June 2014, the European Ombudsman opened two investigations on the Council and the Commission due to complaints by MEPs and civil society on the issue of transparency, calling on them to publish EU negotiating directives. In response to the increasing public concern, in October 2014, the Council decided for the first time to de-classify the negotiating directives on the TTIP and to make them publicly available,45 while in January 2015, the European Commission published the TTIP negotiating documents. The EU disclosure of these directives and documents was an important factor in boosting the involvement of national legislatures in the scrutiny of EU trade agreements. Since then, on the many occasions where they met, in the most structured forum like the EU Speakers’ Conference46 as well as in ad hoc gatherings,47 national legislatures have always praised the Council’s and the Commission’s move towards more transparency in relation to the TTIP and CETA negotiations, claiming that their role could not be confined to the ratification process only. Although MPs have repeatedly asked the Commission to grant them the same level of access to information provided to MEPs, including access to classified documents and to consolidated texts of the agreement, given the sensitivity of the documents, it is only national governments that could provide them to their own parliaments. 44 European Commission, ‘European Commission Proposes Signature and Conclusion of EU–Canada Trade Deal’, press release, 5 July 2016, http://europa.eu/rapid/press-release_IP-16-2371_en.htm. 45 Directives for the negotiation on the Transatlantic Trade and Investment Partnership between the European Union and the United States of America [2014] ST 11103/13. 46 See the EU Speakers’ Conference conclusions of 21 April 2015, held in Rome, and of 24 May 2016 in Luxembourg. 47 On 17 June 2015, the European Affairs Committee and the Committee for Economic Affairs of the French National Assembly jointly organised an interparliamentary meeting to exchange information on the then ongoing negotiations on TTIP, CETA and within the World Trade Organization (WTO) (the Doha round). No fewer than 24 parliamentary chambers participated and the meeting was also attended by a French MEP and the French Secretary of State for Foreign Trade. See French National Assembly, Réunion interparlementaire sur la politique commerciale de l’Union européenne et les négociations en cours avec les États-Unis (TTIP), le Canada (CETA) et au sein de l’OMC (cycle de Doha), Compte rendu no 217, 17 June 2015, www.assemblee-nationale.fr/14/ europe/c-rendus/c0217.asp.

192  Cristina Fasone and Maria Romaniello Indeed, NPs, acting both individually and collectively as a sort of ‘pressure group’ at the European level, managed to gain direct access to further information from their executives. In December 2015, the US and the European Commission signed an agreement extending access to documents to MPs, granting them the possibility to consult the consolidated negotiating documents in equipped secure reading rooms. Member States had the duty to set up the secure reading rooms, and the US and the Commission negotiated the procedure for consulting the negotiating documents, which was then submitted for approval to the Member States in the Council. Council Document 14029/15 thus sets out the procedure and establishes that EU restricted documents can only be consulted in those secure reading rooms, by taking notes and without copies or reproduction of the originals being allowed, by those MPs who ‘have a need to know the text of a particular document because they are vested with trade policy or legislative oversight responsibility’. The 26th COSAC Bi-annual Report of 2016 highlighted that a majority of NPs responding to the questionnaire considered that the transparency of the TTIP negotiation process had improved, although further progress would have been appreciated. Moreover, most national legislatures confirmed the establishment of ad hoc reading rooms, to which, despite the Council’s guidelines, access was granted to all MPs and not just to relevant committee members. Information is a key factor in assuring parliamentary participation in policy-making and it is precisely when looking at the information flow in favour of legislatures that a recalibration of the executive–legislative relationship on EU trade agreement can be detected. Indeed, especially when it comes to international agreements, parliamentary scrutiny strongly depends on the extent to which legislatures have access to negotiating documents, which in turn relies on the willingness of their own executives to keep them informed. Moreover, besides the flow of information, parliaments are, to some extent, reactive institutions, and the more the content of the agreement is based on salient issues, the more they will be prone to becoming involved in the process. CETA and TTIP have revitalised parliaments’ participation in EU trade policy by triggering an unprecedented level of civil society mobilisation and of public debate over the many aspects, from regulation of services, transports and investments to environmental protection affecting citizens’ lives, justifying enhanced transparency and parliamentary scrutiny on the negotiations. Another avenue through which NPs have indirectly sought the recalibration of the relationships with the EU and national executives was their cooperation with the EP, given the enhanced access to information over the negotiations this institution has and the veto power it enjoys. The strategy of national legislatures has been twofold: on the one hand, they have tried to obtain the EP endorsement on the acknowledgement of CETA and TTIP as mixed agreements; on the other hand, they have tried to gain a broader pool of information from MEPs over negotiations. The support of the EP for NPs’ objective to see TTIP and CETA declared as a mixed agreement can be detected both from the activity of COSAC48 as well as from the position of some MEPs. For example, the Chairman of the Committee on International Trade (INTA), Bernd Lange (the Socialists and Democrats Group (S&D), Germany) has convincingly

48 See COSAC, 23rd Bi-annual Report of COSAC on EU Practices and Procedures (2015) 42–55, which provides a very useful survey of the scrutiny powers of NPs and their use in relation to CETA and TTIP.

Executive-Legislative Relations on EU Trade Agreements  193 advocated for the participation of NPs in the ratification of CETA. The engagement of the EP in relation to greater access to information and involvement of NPs was clearly stated in its resolution adopted on 5 July 2015 on TTIP,49 where it stressed the need to provide all the necessary support for Member States ‘in order to keep national parliaments adequately informed on the ongoing negotiations’. On CETA, on 29 November 2016, the INTA Committee held a discussion session with NPs on the agreement, with the aim of enhancing the interparliamentary dialogue and, in November 2017, the S&D political group of the European Parliament organised a conference on ‘The Future of EU Trade Policy’, with the participation of the European Commissioner for Trade, the Chair of the INTA Committee and members of NPs. Cooperation was thus quite intense and, unlike the ‘parliamentary battlefield’ in the area of the CFSP and of the Common Security and Defence Policy (CSDP),50 the relationship between NPs and the EP in the field of EU trade policy showed positive features, with the latter engaging in a continuous dialogue with national legislatures.51 However, this more ‘sincere cooperation’ between NPs and the EP can have two different readings. One is that the increased awareness of and the public attention on the content of EU trade agreements like CETA and TTIP has led to stronger parliamentary involvement, with both the EP and the NPs struggling to enhance the transparency of the ongoing negotiating process through the disclosure of information. Moreover, on the side of the NPs, the stronger position of the EP after Lisbon on EU trade agreements has certainly justified NPs’ interest to increase their cooperation with the EP, as a channel of information next to their own executive also for the sake of better scrutinising the position of their government on the trade agreements under negotiation. The other and less optimistic reading is that the EP was forced to cooperate with NPs due to the mixed nature of the agreements. In fact, the risk of potential national vetoes has probably led the EP to look for a more constructive dialogue with national legislatures, as a defensive action against the ‘nationalisation’ of EU trade policy. Whatever the reading, for the sake of strengthening the position of NPs vis-a-vis national executives on CETA and TTIP, the support of the EP has certainly been an important tool. The particular cases of TTIP and CETA have shown that NPs’ cooperation, through sharing information and coordinated action towards the Commission, the Council and their respective governments, has contributed to a recalibration of executive–legislative relations. The broader access to information, also by using the EP as a benchmark for their claims, has enhanced the ability of MPs to scrutinise and to hold their government accountable on the TTIP and CETA negotiations. Whether this best practice can turn into a longstanding change that can be replicated for other EU trade agreements is difficult to say. The EUSFTA and the EU–Vietnam Free Trade Agreement have not triggered comparable levels of civil society mobilisation and of parliamentary scrutiny to TTIP and CETA, for example. 49 European Parliament resolution of 5 July 2015 containing the European Parliament’s recommendations to the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership (TTIP), www. europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2015-0252+0+DOC+PDF+V0//EN. 50 A Herranz-Surrallés, ‘The EU’s Multilevel Parliamentary (Battle)Field: Inter-parliamentary Cooperation and Conflict in Foreign and Security Policy’ (2014) 37 (5) West European Politics 957. 51 European Parliament, ‘Relations between the European Parliament and National Parliaments’, Mid-term Report 2016, www.epgencms.europarl.europa.eu/cmsdata/upload/2d070e83-0e11-43be-9ae8-1883be4777c3/ Mid-term_Annual_Report_2016_Relations_with_national_Parliaments_web.pdf.

194  Cristina Fasone and Maria Romaniello

V. Conclusion The EP, national and regional parliaments play a complementary role in ensuring the democratic legitimation of the negotiations and ratifications of EU trade agreements. When dealing with EU trade agreements, wherever the power of national parliaments is limited, as with ‘EU only’ agreements, the EP is the unique veto player in the process of adoption of a treaty. By contrast, in the most likely event of EU mixed trade agreements, not just the EP but also national and regional parliaments (in the case of Belgium), depending on the domestic constitutional arrangements, are given an individual veto power that can potentially block or suspend the ratification and hence the full/final entry into force of the agreement. The recalibration of executive–legislative relationships on TTIP and CETA has been pursued by national parliaments in a rather effective manner in a variety of ways. First, by claiming individually towards their government, and collectively at the EU level by seeking the support of the EP, that these agreements had a mixed nature, they have aimed to be involved in the ratification. In parallel, in threatening to veto the signature (as was the case with the Walloon Parliament in Belgium) or the subsequent ratification (as MPs and parliamentary minorities eventually did by challenging the constitutionality of CETA before the courts), NPs have consistently asked to obtain access to information on the ongoing negotiations, which they have at least in part received through so-called ‘reading rooms’, having acted as a collective ‘pressure group’ at the EU level and using the EP as a benchmark. Is the recalibration of executive–legislative relations we have witnessed on TTIP and CETA going to have a longstanding effect on the role of national and regional parliaments in EU mixed trade agreements? This seems unclear and a positive answer is not straightforward. Indeed, at the domestic level, the relevant rules on parliamentary scrutiny have not been altered and the parliamentary control on treaty negotiations has resorted to the standard rules on the scrutiny on EU or international affairs, while ratifications are carried out according to the usual constitutional arrangements. At the EU level, the wider access to information by the Council and the Commission and, in turn, by national governments has been granted ad hoc on TTIP and CETA, and not as a general guarantee that is also extendable to other agreements. Indeed, a comparable level of access to information has not been granted for agreements like those between EU and Singapore, Vietnam and Japan, nor have NPs requested it to better scrutinise the executives. Indeed, by no means do these agreements feature the level of public and parliamentary mobilisation, as well as towards the EP, that CETA and TTIP have triggered.

11 Exploring Interaction between National Parliaments and the European Parliament in EU Trade Policy KATHARINA L MEISSNER AND GURI ROSÉN

I. Introduction The European Union (EU)’s trade agenda recently triggered unprecedented levels of political controversy and societal protest. This materialised with the EU’s transatlantic negotiations with Canada on the Comprehensive Economic Trade Agreement (CETA) and the US on the Transatlantic Trade and Investment Partnership (TTIP). Among the biggest concerns in relation to CETA and TTIP were the lack of transparency and democratic accountability of the EU’s executive – meaning primarily the European Commission, but also the Council of the European Union and national governments – in these negotiations. The critical question has been the European public’s input and control of EU trade policy, but also the role played by Member State parliaments and the European Parliament (EP). At its launch, the Juncker Commission wanted to re-invigorate a ‘special partnership’ with the EP and a ‘new partnership’ with national parliaments (NPs).1 In the area of trade, the central actor that holds the Commission accountable is the EP. Next to the EP, however, NPs have recently also become more assertive of their role in EU trade politics.2 Their role was also upgraded by the Lisbon Treaty, while a recent opinion by the Court of Justice of the European Union (CJEU) clarified that NPs will have to ratify international agreements that include indirect investment provisions.3 Taken together, the more apparent politicisation of EU trade policy and increasingly assertive parliaments at both the European and national levels could be expected to change the legislative–executive relations in the EU. Thus, the question we attempt to answer in this chapter is whether and how the legislative–executive relations in EU trade policy have been recalibrated since the

1 EP Mid-Term Report, ‘Relations between the European Parliament and National Parliaments under the Treaty of Lisbon’ (2014–15). 2 C Roederer-Rynning and M Kallestrup, ‘National Parliaments and the New Contentiousness of Trade’ (2017) 39 Journal of European Integration 811; C Fasone and M Romaniello, ch 10 in this volume. 3 Opinion 2/15 of the Court (Singapore) [2017] ECLI:EU:C:2016:992.

196  Katharina L Meissner and Guri Rosén entry into force of the Lisbon Treaty in 2009 and after Commission President Jean-Claude Juncker came into office in 2014 (until 2019). More specifically, and in line with the overall theme of this volume, we examine the extent to which such a putative recalibration benefits primarily the EP or also parliaments at a national level. In doing so, we explore whether changes in executive–legislative relations can be expected to have a long-lasting impact or if they temporarily peaked during the course of the highly politicised CETA and TTIP negotiations. Scholars have widely discussed executive–EP interaction in the negotiation of international agreements4 and there are recent advancements to analyse executive–NP interaction in trade policy.5 Yet, there is a lack of an integrated and systematic examination of whether and how the current level of transparency and participation testifies to a recalibration of the executive–legislative in EU trade policy. Our aim here is to provide an analysis of how executive–legislative relations have changed since the Lisbon Treaty in the area of trade policy. More specifically, we ask whether and how executive–legislative interaction has changed from the Barroso Commission (2009–14) to the Juncker Commission (2014–19), which introduced a renewed partnership with parliaments and launched a transparency initiative on trade agreements. When we speak of the EU’s executive(s) in this chapter, we primarily refer to the Commission, but we also seek to provide an integrated perspective on legislative interactions with the Council or national governments where appropriate. We expect that with the new powers granted to parliaments in the Lisbon Treaty and with the aim of Juncker to enhance executive–legislative relations, the EU’s executives overall – not only the Commission but also the Council and national governments – have become more attentive to parliaments in the EU, including the EP and NPs. In other words, we are interested in whether Juncker’s efforts to re-invigorate the partnership with parliaments translated into actual endeavours to strengthen executive– legislative relations in the context of trade negotiations. We proceed by sketching out the state of the art on the involvement of the EP and NPs in trade negotiations. Based on the current literature and existing theoretical approaches, we deduce expectations on interaction between the EU’s legislatives, the EP and NPs, and executives, referring to the Commission, the Council and national governments in the area of trade policy. This also includes potential cooperation between the EP and NPs. Afterwards, we turn to a systematic mapping of executive–legislative relations along the dimensions of transparency and meetings and consultations through a comparison of the Barroso Commission and the Juncker Commission.

4 See, eg, A Ripoll-Servent, ‘The Role of the European Parliament in International Negotiations after Lisbon’ (2014) 21 Journal of European Public Policy 568; G Rosén, ‘A Match Made in Heaven? Explaining Patterns of Cooperation between the Commission and the European Parliament’ (2016) 38 Journal of European Integration 409; G Rosén, ‘The Impact of Norms on Political Decision-Making: How to Account for the European Parliament’s Empowerment in EU External Trade Policy’ (2017) 24 Journal of European Public Policy 1450; L van den Putte, F de Ville and J Orbie, ‘The European Parliament as an International Actor in Trade: From Power to Impact’ in S Stavridis and D Irrera (eds), The European Parliament and its International Relations (Abingdon, Routledge, 2015). 5 D Jančić, ‘TTIP and Legislative–Executive Relations in EU Trade Policy’ (2017) 40 West European Politics 202; Roederer-Rynning and Kallestrup (n 2).

Exploring Interaction between National Parliaments and the European Parliament  197

II.  The State of the Art and Theoretical Expectations Recent controversies over EU trade policy centre, among other aspects, on transparency: access by the public or parliamentarians to information about executive activities and decisions. In the context of EU politics, in 2014, the Juncker Commission responded to these concerns by launching a transparency initiative. Part of this initiative was a set of rules for all Commissioners, including Cecilia Malmström, the Commissioner for Trade. When she came into office, she declared: ‘We want to consult even more extensively on TTIP, and be even more transparent.’6 We conceive of transparency, in the form of access to documents, and consultation, in the form of meetings, as two crucial tools for parliaments in executive–legislative interaction. While access to information is a precondition for legislative actors to fulfil their role of holding the executive accountable,7 consultation in the form of meetings is vital to the inclusion of parliamentarians during the decision-making processes. Most parliaments only get to ratify trade agreements once the negotiations are at an end, so interacting with the executives responsible for the negotiations is crucial to ensure that parliamentary positions are taken into account. Hence, enhanced executive–legislative interaction in this chapter is understood as improved access to documents and more regular meetings with executive bodies, be it the Commission, the Council or national governments, which report to parliaments.8 Expectation 1: With the New Rights that the EP and NPs Received Following the Lisbon Treaty, Executive–Legislative Interaction has been Enhanced In assessing the potential recalibration of executive–legislative interaction, we start from the basis of the Lisbon Treaty provisions. The Lisbon Treaty extended the EP’s rights in the negotiation of trade agreements significantly: first, it gave the EP consent to such agreements; and, second, it codified the EP’s right to be kept informed by the Commission at all stages of negotiations.9 This empowerment sparked a vibrant scholarly debate on the EP’s role in trade negotiations.10 The upgrading of the rights of NPs that came with the Lisbon Treaty also fuelled an intense debate on their legislative function to influence and scrutinise EU decision-making.11 In the area of trade, NPs need to ratify mixed agreements. As a result of the parliamentary empowerment, one would expect EU executives – and particularly the Commission – to be much more attentive to legislative actors in the area of trade during the negotiation phase than before the Lisbon Treaty. This is consistent with the state-of-the-art

6 Commission, ‘Opening the Windows: Commission Commits to Enhanced Transparency’ (2014), www. europa.eu/rapid/press-release_IP-14-2131_en.htm. 7 AE Stie, Democratic Decision-Making in the EU: Technocracy in Disguise? (Abingdon, Routledge, 2013). 8 See also KL Meissner and MG Schoeller, ‘Rising Despite the Polycrisis? The European Parliament’s Strategies of Self-Empowerment after Lisbon’ (2019) 26(7) Journal of European Public Policy 1075. 9 G Rosén, ‘Contestation and Co-optation: Why Secrecy in EU External Relations Varies’ (2018) 41 West European Politics 933. 10 KL Meissner, ‘Democratizing EU External Relations: The European Parliament’s Informal Role in the SWIFT, ACTA, and TTIP Negotiations’ (2016) 21 European Foreign Affairs Review 269; G Rosén, ‘The Impact of Norms’ (n 4); van den Putte et al (n 4). 11 See, eg, I Cooper, ‘A “Virtual Third Chamber” for the European Union? National Parliaments after the Lisbon Treaty’ (2012) 35 West European Politics 441.

198  Katharina L Meissner and Guri Rosén literature, where the EP’s empowerment is accounted for partly as a result of legitimacy concerns12 and partly as a consequence of the EP’s increased bargaining powers that enables it to use obstruction of decision-making as a form of blackmail.13 Both explanations have been shown to hold in the area of trade policy and the negotiation of agreements like the Brexit withdrawal agreement signed in January 2020.14 Given the greater rights for the EU’s legislatures in the area of trade, this leads us to expect that interaction with the executive has been significantly enhanced over time since the Lisbon Treaty. This expectation would also suggest that executive–legislative relations have undergone a long-lasting recalibration in favour of parliaments owing to formal EU treaty changes. Expectation 2: Executive–Legislative Interaction is Higher as the Need for Legitimacy Increases While we assume that the Lisbon Treaty recalibrated executive–legislative relations overall in favour of parliaments, we expect that such interaction is most intense when the executive faces legitimacy concerns. These concerns usually surface when particular decisions are contested and highly politicised – something we observed with the EU’s transatlantic trade negotiations. The discrepancy between ought and is15 leads to a need for enhanced legitimacy. Rosén16 argues that the legitimacy of secrecy in the area of trade was challenged by the EP and, at the same time, the Commission responded with a transparency initiative. These reconfigured perceptions of what is considered legitimate secrecy should increase access by the EU’s legislatures to documents on trade negotiations as well as the frequency of meetings with the executive, but primarily at times when salience increases the need for legitimacy. Expectation 3: The Greater Institutional Strength on EU Affairs, the Higher the Executive–Legislative Interaction Recently, research also turned to investigating the extent to which and how NPs scrutinise EU decision-making.17 Yet, there are just a handful of studies on the activities of NPs in the negotiation of international trade agreements.18 Roederer-Rynning and Kallestrup19 find variation of NPs’ scrutiny activities on trade agreements. In explaining this variation, studies find the influence of institutional strength on the degree of parliamentary ­activities.20 Parliaments need organisational capacity in order to be able to gather and process

12 B Rittberger, ‘The Creation and Empowerment of the European Parliament’ (2003) 41 Journal of Common Market Studies 203; EO Eriksen and JE Fossum, ‘Representation through Deliberation: The European Case. Constellations’ (2012) 19 International Journal of Critical and Democratic Theory 325. 13 A Héritier, KL Meissner, C Moury and MG Schoeller, European Parliament Ascendant: Parliamentary Strategies of Self-Empowerment in the EU (London, Palgrave Macmillan, 2019). 14 See, eg, C Closa, ‘Inter-institutional Cooperation and Intergroup Unity in the Shadow of Veto: The Construction of the EP’s institutional Role in the Brexit Negotiations’ (2019) 27(4) Journal of European Public Policy 630; G Rosén, ‘A Match Made in Heaven?’ (n 4). 15 B Rittberger and F Schimmelfennig, ‘Explaining the Constitutionalization of the European Union’ (2006) 13 Journal of European Public Policy 1148. 16 Rosén (n 9). 17 See, eg, K Auel and T Christiansen, ‘After Lisbon: National Parliaments in the European Union’ (2015) 38 West European Politics 261. 18 Jančić (n 5); Roederer-Rynning and Kallestrup (n 2). 19 Roederer-Rynning and Kallestrup (n 2) 817. 20 See, eg, Auel and Christiansen (n 17).

Exploring Interaction between National Parliaments and the European Parliament  199 information that is necessary to scrutinise a particular EU issue.21 It is plausible to assume that this also has an effect on executive–legislative interaction, since legislative bodies need capacity in order to request documents or meetings from the Commission. Expectation 4: Executive–Legislative Interaction is Higher in EU Member States with High Politicisation of Trade Agreements Compared to Other Countries At the same time, strong institutional prerogatives do not necessarily lead to greater parliamentary activities.22 Political incentives or willingness of MPs have been identified as important factors.23 This is based on the assumption that NPs need to be responsive to citizens.24 Thus, NPs estimate possible effects of EU affairs on their domestic constituencies, based on which they decide whether to employ political opportunity structures and to invest political resources. In other words, NPs factor in the politicisation of EU issues.25 In trade policy, the EU’s negotiations with Canada (CETA) and the US (TTIP) have thus far been the most salient and politicised negotiations. The Commission has a vital interest in concluding trade agreements and should thus pay most attention to parliaments in those countries where trade agreements are highly contested and politicised. Such an expectation resonates with a crisis-driven recalibration of executive–legislative relations owing to the exceptional politicisation of CETA and TTIP.26

III.  Executive–EP Interaction Have executive–legislative relations been recalibrated since the Lisbon Treaty and, if so, how? Does this primarily affect the EP or also NPs, and which part of the executive – the Commission, the Council or national governments – do they hold accountable? To answer these questions and to see whether the executive–legislative relationship has developed according to our expectations as set out in the previous section, we compare the interaction between the EP and NPs on the one hand, and the EU’s executives on the other hand in the periods 2009–14 (Barroso) and 2014–19 (Juncker). Focusing on the level of transparency and the frequency of meetings, our analysis is primarily based on two sources of data. First, we have mapped the calendars of Trade Commissioners Karel De Gucht (2009–14) and Cecilia Malmström (2009–17), recording with whom the Commissioners have met as well as which country the actors are from. We have also charted the attendance of Commission representatives at the EP’s Committee on International Trade (INTA) meetings (2009–17), based on INTA agendas. Second, we have conducted 17 interviews with representatives from the EP, the Commission, the Council Secretariat and the national representations.

21 See, eg, R de Ruiter, ‘Under the Radar? National Parliaments and the Ordinary Legislative Procedure in the European Union’ (2013) 20 Journal of European Public Policy 1196, 1198. 22 Auel and Christiansen (n 17) 275. 23 See, eg, ibid. 24 K Auel, O Rozenberg and A Tacea, ‘To Scrutinise or Not to Scrutinise? Explaining Variation in EU-Related Activities in National Parliaments’ (2015) 38 West European Politics 282, 283. 25 R Bellamy and S Kröger, ‘The Politicization of European Integration: National Parliaments and the Democratic Disconnect’ (2016) 14 Comparative European Politics 125. 26 See D Fromage, A Herranz-Surrallés and T Christiansen in this volume.

200  Katharina L Meissner and Guri Rosén The resulting data are analysed according to period and parliamentary level. In a first step and in this section, we explore the development in the access to documents and meetings between the EP and executive actors, including the Commission and, where available, the Council, over the time period of the Barroso and Juncker Commissions. In a second step and in the subsequent section, we turn to the dynamics of access to documents and meetings between NPs and the EU’s executive actors, including the Commission as well as the Council (where available) and national governments.

A.  The Barroso Commission (2009–14) Even before the entry into force of the Lisbon Treaty, the Commission’s approach to the EP underwent significant changes.27 The EP established a separate Committee for International Trade (INTA) after the elections in 2004 and this became the primary interlocutor for the Commission in particular, but also for the Council. As a result of the changes introduced in the Constitutional Treaty – the precursor to the Lisbon Treaty – the Commission was proactive in its approach not only vis-a-vis INTA, but also the political groups.28 Thus, when the new provisions of the Lisbon Treaty came into force on 1 December 2009, the Commission was already accustomed to the new reality. The development of the relationship between the Council and the EP was much slower, as the Member States apparently had a harder time adjusting to the EP’s new role in trade. The first international agreement that tested the EP’s new powers was an agreement on the exchange of banking data between the EU and the US called SWIFT (on which negotiations started in June 2009). Already during the negotiations on the SWIFT Interim Agreement, the EP requested access to all negotiation documents from the Commission as well as the Council. Largely because its demand was disregarded, the EP refused ratification. Given the EP’s veto, the agreement had to be renegotiated and this time around, the Commission proved more willing to consult the EP.29 However, there was no meeting specifically on the SWIFT negotiations in the INTA Committee in 2009 or 2010, as they took place in parallel with other negotiations such as those on the Anti-Counterfeiting Trade Agreement (ACTA) or TTIP (see below) (SWIFT was ratified in July 2010 by the EP). Instead, meetings were on the general state of negotiations: in 2009, representatives from the Commission’s Directorate General (DG) for Trade came five times, and two times in 2010, to report to INTA on the general state of play of negotiations. The interaction between the Council and the EP at this point was still plagued by the unwillingness of many Member States to accept the new state of affairs.30 One particular bone of contention was access to documents. During the negotiations on ACTA, the conflict tightened. The EP reinforced its demands for more regular meetings and access to all negotiation documents. The amount 27 Rosén, ‘A Match Made in Heaven?’ (n 4). 28 Interviews, European Commission, Brussels, 28 and 30 June 2011, Guri Rosén. 29 J Santos Vara, ‘The Role of the European Parliament in the Conclusion of the Transatlantic Agreements on the Transfer of Personal Data after Lisbon’ (2013) Centre for the Law of EU External Relations, 3 CLEER Working Papers 17. 30 Interviews, European Commission (28 June 2011), Council Secretariat (30 June 2011) and European Parliament (30 May 2011), Brussels, Guri Rosén.

Exploring Interaction between National Parliaments and the European Parliament  201 of documents the Commission actually shared fell short of these demands, which is why member of the European Parliament (MEP) Sophie In’t Veldt brought the case to the CJEU. Still, there appears to be some interesting differences before and after the entry into force of the Lisbon Treaty where we observe an increase in access to documents following the new Treaty,31 despite it not being enough, according to the EP. Following the ACTA debacle, the EP and the Commission agreed on a new set of inter-institutional rules for the exchange of documents on international agreements.32 The agreement entails that the EP receives all the information that the Commission gives to the Council.33 Although ACTA was a multilateral agreement with EU Member States as negotiation partners, the EP seems to have focused mainly on the Commission, while there is less evidence of an attempt to systematically scrutinise the Council presidencies on the agreement.34 The EP’s demands for access to ACTA documents were directed against both the Commission and the Council,35 but the Council’s response was slow. Not until 2014 did the two parties agree on the exchange of confidential documents that would allow MEPs some insight into the information possessed by the Council.36 Regarding meetings, the EP asked for briefings before and after each negotiation round even before the Lisbon Treaty entered into force.37 Yet, the Commission at that time fell short of these demands and we can observe a key difference between the period before and after the entry into force of the Lisbon Treaty. While the interaction between the EP and the Commission increased after 2004, the Commission was not compelled to provide information to the EP and the contact was irregular.38 After the entry into force of the Lisbon Treaty, it had no choice on the matter of providing information and engaging regularly with the EP.39 As of 2009, there was thus increased interaction between the Commission and the EP. Attendance by Commission representatives at INTA meetings rose from eight in 2009 to 15 in 2010, 17 in 2011 and, with a slight drop, 12 in 2012 (see Figure 11.1 below). Although most of these attendances were on the general state of play of EU trade negotiations, arguably ACTA might have had an effect on this increased frequency. Thus, the question remains as to whether the increased interaction is a result of the empowerment of the EP, which would speak to our first expectation and to a permanent recalibration of executive–EP relations, or rather – as the two spikes could suggest – of particularly contested trade agreements intensifying the contact between the Commission and the EP, which would reinforce our second expectation. The latter would then rather suggest recalibration due to the exceptional contestation over ACTA (akin to the crisis-driven executive–legislative recalibration).40 To answer this question, we continue the exploration of the interaction between the EP and the Commission during the Juncker Commission. 31 Commission, ‘Transparency of ACTA Negotiations’ (2012), www.europa.eu/rapid/pressrelease_MEMO-1299_en.htm; A Maurer, Comparative Study on Access to Documents (and Confidential Rules) in International Trade Negotiations (Brussels, European Parliament, 2015) 29. 32 Framework Agreement, 2010, annex 3. 33 Interview, European Commission, Brussels, 17 February 2017, Guri Rosén. 34 Maurer (n 31) 28. 35 European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations, P7_TA (2010)0058. 36 Rosén (n 9). 37 Interview, European Commission, Brussels, 9 February 2015, Katharina Meissner. 38 Interview, European Parliament, Brussels, 12 February 2015, Katharina Meissner. 39 Interview, European Commission, Brussels, 30 June 2011, Guri Rosén. 40 See Fromage, Herranz-Surrallés and Christiansen in this volume.

202  Katharina L Meissner and Guri Rosén Figure 11.1  Attendance of Commission representatives at INTA meetings, 2009–17 (based on INTA agendas) 18 16 14 12 10 8 6 4 2 0 2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

2018

B.  The Juncker Commission (2014–19) The Juncker Commission introduced much greater access to documents by the EP, especially on TTIP. Some interviewees argue that the TTIP negotiations fundamentally changed executive–EP relations, especially the relations between the Commission and the EP, to the benefit of the legislative. This would be in line with our second and fourth expectations outlined above.41 The INTA Committee was given access to sensitive documents on other negotiations as well,42 but the EP’s access to documents during the TTIP negotiations was unprecedented.43 The frequency of meetings between the Commission and the EP was also unprecedentedly high during the TTIP negotiations. In fact, both the Commission and the Council preferred to coordinate with the EP on TTIP in order to avoid an eventual rejection of the agreement.44 Commissioner Malmström established a practice of debriefings of the EP’s TTIP monitoring group before and after each negotiation round.45 Alongside these meetings, EP officials also met with the DG Trade before each INTA meeting and they had regular informal contact through email and phone.46 To enable a feasible monitoring of the TTIP negotiations, the EP also set up working and monitoring groups. The members

41 Interview, European Parliament, Brussels, 26 February 2015, Katharina Meissner. 42 Maurer (n 31) 30. 43 E Coremans, ‘From Access to Documents to Consumption of Information: The European Commission Transparency Policy for the TTIP Negotiations’ (2017) 5 Politics and Governance 29. 44 Interview, European Commission, Brussels, 27 February 2015, Katharina Meissner. 45 Answers to the European Parliament Questionnaire to the Commissioner-Designate Cecilia MALMSTRÖM Trade (2014), https://www.europarl.europa.eu/hearings-2014/resources/questions-answers/ Hearings2014_Malmström_Questionnaire_en.pdf. 46 Coremans (n 43) 34.

Exploring Interaction between National Parliaments and the European Parliament  203 of these groups were the interlocutors in following sector-specific issues and in reporting to the EP.47 The number of members in these monitoring groups also increased with TTIP mainly because of the broad scope of this eventual agreement. In addition, the committees cooperated closely with each other. For instance, all relevant committees were invited to meetings of the monitoring groups.48 Figure 11.1 shows a clear peak in the frequency of Commission attendance in INTA in 2015, which is largely due to TTIP. Given the controversial debate surrounding TTIP, one might have expected the peak to be even more pronounced. However, the changing working structures within the EP can account for why this was not the case: the EP gradually built monitoring groups and assigned rapporteurs as well as shadow rapporteurs, which were responsible for following trade negotiations.49 Hence, executive–EP interaction shifted from INTA meetings to exchange between monitoring groups as well as rapporteurs and the Commission. As Coremans50 highlights, the frequency of interaction between the Commission and the EP was extremely high on TTIP. In 2015, there were 10 meetings with 22 attendees on average (vis-a-vis three annual meetings with three MEPs on average for other trade agreements), 35 monitoring groups and seven briefings between 2013 and 2016. This corroborates with the expectation that it is not only the empowerment of the EP (our first expectation) that has intensified its interaction with the Commission, but also the salience of the particular trade agreements (as our second and fourth expectations suggest). Since TTIP, the Commission has enhanced interaction with the EP in the negotiation of other trade agreements, including sectoral agreements, although not to the same extent. In the wake of TTIP, for instance, the Commission agreed with the EP that, in the future, it would make every negotiation mandate public. For example, this has led to the publication of the mandates on the Trade in Services Agreement (TiSA). Moreover, in order to include investment negotiations in the trade talks with Canada, India and Singapore, the Commission shared copies with the Chair, the Vice-Chair, the coordinators and the rapporteurs of INTA.51 These developments suggest an incremental recalibration of executive–EP relations to the benefit of the legislator since the Lisbon Treaty. Nevertheless, the EP’s efforts to enhance interaction with the Commission in the context of trade policy centres on highly politicised negotiations, as the ‘negative case’ of the EU–Singapore negotiations illustrates. In these negotiations, the EP did not request much information from the Commission;52 in fact, it did not invest political resources in improving access to information or the frequency of meetings in the low-key negotiations, with close to zero public saliency. Among the interviewees who currently work with EU trade, the majority testified to the particularities of TTIP and several also lamented how both MEPs and MPs were paying a lot less attention to other trade agreements, such as TiSA.53

47 Interview, European Parliament, Brussels, 26 February 2015, Katharina Meissner. 48 ibid. 49 E Coremans and KL Meissner, ‘Putting Power into Practice: Administrative and Political Capacity Building in the European Parliament’s Committee for International Trade’ (2018) 96 Public Administration 561. 50 Coremans (n 43) 34. 51 Maurer (n 31). 52 Interview, European Parliament, Brussels, 12 February 2015, Katharina Meissner. 53 Interviews, European Parliament, telephone, 1 November 2016 and 17 April 2017, Guri Rosén.

204  Katharina L Meissner and Guri Rosén

IV.  Executive–NP Interactions The previous section on executive–EP interaction suggests two parallel developments: on the one hand, and somewhat in line with our first expectation, relations between the EP and the Commission in particular incrementally enhanced following the Lisbon Treaty in the form of more available documents and frequent meetings; on the other hand, the intensity of Commission–EP interactions clearly peaked with the highly contested TTIP negotiations, which would suggest we find executive–legislative recalibration following exceptional circumstances. Turning to NPs54 and their relations with the EU’s executive(s) – ie, the Commission, the Council and also national governments – there is considerably less available information on transparency and meetings compared to the EP. Assessing the available information on executive–NP interactions, we observe great variation between different NPs in terms of the amount of documents they receive and the frequency of interaction with the Commission, Council or their national governments. Arguably, however, the politicisation of the CETA and TTIP negotiations altered executive–NP interactions, as this section will show.

A.  The Barroso Commission (2009–14) An argument for empowering the EP’s role in trade has been that when the EU is given more exclusive competences, international trade agreements no longer require the ratification of NPs, which creates a legitimacy vacuum.55 As for many Member States, the EP’s new role seems to have come as a surprise to some national parliamentarians. According to one interviewee, NPs want to participate more and ‘complained about the fact that they were not allowed to have access to negotiation mandates’.56 In 2011, shortly after the Lisbon Treaty, the EP was still very reluctant to concede further rights to NPs. It insisted on its formal rights to be the primary and main legislator regarding EU affairs. In the Steering Group of the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC) in 2010, the EP made it clear that it wanted COSAC to remain a forum for pure exchange and discussion of information or political issues as well as best practices, as foreseen by COSAC’s rules of procedure.57 The following year, tensions arose again between the EP and NPs regarding their rights to hold the EU’s executive(s) – primarily the Commission, but also the Council – accountable, while the desire was expressed to move towards a more consensual approach.58 On a general level of EU affairs, the same can still be observed a year later when the EP reported about COSAC meetings: [A] number of NPs are frustrated by their insufficient involvement in European affairs … These NPs are putting pressure for a greater involvement in the European decision-making process, 54 See also Fasone and Romaniello, ch 10 in this volume. 55 M Krajewski, ‘External Trade Policy and the Constitutional Treaty: Towards a Federal and a More Democratic Common Commercial Policy’ (2005) 42 Common Market Law Review 97. 56 Interview, European Parliament, Brussels, 30 May 2011, Guri Rosén. 57 EP Mid-Term Report (2010–11), ‘Report on “Interparliamentary Relations between the European Parliament and National Parliaments under the Treaty of Lisbon”’ 2009–14, 7. 58 EP Mid-Term Report (2012), ‘Report on “Interparliamentary Relations between the European Parliament and National Parliaments under the Treaty of Lisbon”’, 2009–14.

Exploring Interaction between National Parliaments and the European Parliament  205 in particular the legislative process, with or without Treaty changes. As a result, the EP delegation, representing an EU institution, had to insist time and again that the EU Treaties have to be respected. It also had to remind NPs … [that] the adopted texts have to respect the role and prerogatives of the EP as a Union institution.59

Remedying the passivity of NPs in the context of EU trade policy, the French Parliament in July 2013 produced three reports on TTIP negotiations,60 but while it did signal the possibility of vetoing the agreement at the start of the negotiations, the demand for better access to documents and ‘closer scrutiny over the Council’ came later.61 Figure 11.2 below corroborates the impression that NPs were not on the agenda of the EU executive, namely the Commission, during the Barroso term. Figure 11.2  Trade Commissioner’s meetings with national parliaments, 2009–17 18 16 14 12 10 8 6 4 2 0

2010

2011

2012

2013

2014

2015

2016

2017

Source: Calendar of Trade Commissioners.

B.  The Juncker Commission (2014–19) The degree of transparency from the executive – especially from the Commission, but also from national governments – towards NPs varies greatly between EU Member States. While all NPs have access to EU Limité documents provided by national governments, except for the Irish Houses of the Oireachtas,62 17 can access EU Restricted documents, seven can access EU Confidential documents, and only the Austrian parliamentary chambers are

59 EP Mid-Term Report (2013–14), ‘Report on “Interparliamentary Relations between the European Parliament and National Parliaments under the Treaty of Lisbon”’, 2009–14, 11. 60 Roederer-Rynning and Kallestrup (n 2) 819. 61 Jančić (n 5) 210. 62 COSAC Report, ‘Twenty-Third Bi-annual Report: Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny’ (2015) 53.

206  Katharina L Meissner and Guri Rosén provided with EU Secret and Top Secret documents.63 According to a COSAC Report (2015), only selected NPs receive and scrutinise negotiation mandates issued from the Council to be given to the Commission. The German Bundestag and the Swedish Riksdag can access the final negotiation mandate.64 Also, the Danish Folketing, the Finnish Eduskunta and the Latvian Saeima reported that they had received information on CETA and TiSA from the moment the Commission was authorised with a negotiating mandate.65 With the exception of Latvia, this tallies with our third expectation on institutional strength, given that these are strong NPs with strong institutional rights according to an index developed by Auel, Rozenberg and Tacea.66 The procedure of access to documents as well as the quality of information differs between NPs.67 While the Dutch Eerste Kamer has access to documents through a special database, 18 parliamentary chambers reported that they receive information, including negotiation documents, on negotiations through specific provisions agreed with the respective national governments. This applies to the Latvian Saeima, the German Bundesrat and the French Senat. Other parliaments receive information on negotiations by scrutinising their government, namely those in Austria, Belgium, Bulgaria, the Czech Republic, Estonia, Finland, Germany, Lithuania, Luxembourg, Poland and Romania. Information is provided upon request to; the Finnish Eduskunta, Bulgaria, Hungary, Slovenia, Romania, Poland, Spain, Czech Republic, the Netherlands and Croatia. Moreover, NPs reported access to different kinds of documents. Least access seems to be given to the Slovak and the Czech Parliaments, which only receive information that is already available to the public. In light of our third expectation on institutional strength, this is somewhat surprising, given that these are NPs with a medium (not low) degree of institutional strength (scores between 0.5 and 0.6).68 From the perspective of institutional strength, it is also surprising that some relatively strong NPs are given low-quality information. An example of this is Denmark, which reported that written reports on trade negotiations are very general and unspecific. The biggest degree of transparency seems to apply to the Swedish Parliament, which receives all documents that are also available to MEPs. This in turn resonates with the data on institutional strength, according to which Sweden has one of the strongest NPs.69 On TTIP in particular, and in line with our fourth expectation, access to documents increased for a majority of NPs. A total of 35 parliamentary chambers reported that their members could access documents in an ad hoc reading room set up for TTIP; in 19 cases, all MPs had access to this room.70 In countries such as Germany, there is evidence of an increased demand for access to information and calls to set up reading rooms in Berlin, as opposed to MPs having to go to Brussels to read the relevant documents. Interviewees confirm that this was a key demand from MPs, which lowered the bar for more national parliamentarians being able to scrutinise EU trade policy directly.71 63 Maurer (n 31)58. 64 COSAC Report (n 62) 42. 65 ibid 46. 66 Auel et al (n 24) 293. 67 COSAC Report (n 62) 51–53. 68 See Auel et al (n 24) 293. 69 ibid. 70 COSAC Report, ‘Twenty-Sixth Bi-annual Report: Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny’ (2016) 12. 71 Interview, European Parliament, telephone, 17April 2017, Guri Rosén.

Exploring Interaction between National Parliaments and the European Parliament  207 With regard to the interaction between the Commission and national parliaments, several NPs had visits from Commission representatives to discuss trade matters.72 This was especially intense on the TTIP negotiations, as illustrated by Figure 11.2, which displays a sharp increase in the Trade Commissioner’s meetings with NPs in 2015. Roederer-Rynning and Kallestrup73 also found that executive–NP interactions were particularly strong on TTIP. Alongside 14 NPs that they classify as sustained and regular scrutinisers of EU trade policy, their findings indicate that 18 chambers focused especially on TTIP in their scrutiny endeavours.74 In general, quite a large number of NPs from 15 EU Member States report that they had representatives from the Commission, the DG Trade or the Commission representation in their country reporting to their chambers: Austria, Bulgaria, Croatia, Estonia, Finland, France, Germany, Italy, Lithuania, Luxembourg, the Netherlands, Poland, Romania, Spain and the UK. Moreover, nine parliamentary chambers also reported interaction with their government representatives on trade negotiations: Cyprus, the French Assemblée Nationale and Senat, Ireland, Italy, Luxembourg, Malta, Poland, Portugal and Romania. The Lithuanian Parliament and the Dutch Senate were particularly active in this respect, in that the former joined meetings of the Commission-Economic Diplomacy Council established by the government and the latter invited Karel De Gucht in 2013 to discuss the EU’s trade agenda. On TTIP, NPs reported that a majority of 26 of them had occasional visits from the Commission in order to discuss TTIP.75 Moreover, selected NPs organised meetings with American representatives, while the Czech Republic, the Romanian Camera Deputatilor and the Bulgarian Narodno sabranie set up public debates with participants from the Commission. In fact, the EP also reported that by 2016, the Commission had enhanced its interaction with NPs by having more frequent meetings and discussions.76 Hence, the politicisation of TTIP clearly enhanced executive–NP interactions, in that it resulted in increased access to documents (ie, transparency) and more frequent meetings with Commission officials to discuss EU trade and investment issues. Institutional strength, in contrast, does not seem to be a predictor of executive–legislative meetings, given that these NPs vary on this issue.77

V.  Concluding Discussion In this chapter, we set out to assess: (a) whether and how the enhanced powers of legislative bodies, including both the EP and NPs, in the Lisbon Treaty triggered a recalibration of executive–legislative relations in EU trade policy; and (b) whether, as a result of Juncker’s new ‘partnership’ with parliaments, this has been further enhanced during his time in office as Commission President. Our findings indicate that a recalibration of executive–legislative relations has taken place in favour of legislative bodies in the EU since the Lisbon Treaty. Over time, the EP

72 COSAC

Report (n 62) 42–45. and Kallestrup (n 2) 818–20. 74 ibid 818. 75 COSAC Report (n 69) 9. 76 EP Mid-Term Report (2013–14) (n 59) 6. 77 Auel et al (n 24) 293. 73 Roederer-Rynning

208  Katharina L Meissner and Guri Rosén managed to successfully expand access to negotiation documents and, especially in the TTIP negotiations, there were frequent meetings with executive actors from the Commission and to some extent the Council. However, the bulk of executive–EP interactions seem not to happen in the INTA, but in the form of monitoring groups and rapporteurs set up by the EP. Hence, executive–EP relations improved under the Juncker Commission compared to the Barroso Commission, especially to the benefit of intra-parliamentary actors like monitoring groups and rapporteurs. Alongside an active EP, we find an increasing assertiveness of NPs to engage in EU trade politics. Like the EP, the majority of NPs gained access to negotiation documents via their national governments, and they held meetings with executive actors, including Commission and governmental representatives. These dynamics suggest a gradual executive–legislative recalibration to the benefit of parliaments in EU trade policy. Yet, intensive executive–legislative interaction in EU trade policy centres primarily on highly politicised negotiations such as ACTA and TTIP. This is particularly evident when NPs are included in the analysis. While both the EP and several NPs were successful in improving transparency and in having more frequent meetings with executive actors such as Commission representatives or national governments in the case of NPs, parliaments’ endeavours, and also the Commission’s efforts, concentrated on agreements that were highly salient to the public. During the Barroso Commission, the EP had frequent meetings with Commission representatives, which came to report to the INTA during the period where the EP was preparing its vote on ACTA (see Figure 11.1). In the Juncker Commission, frequency of meetings was also high in the TTIP negotiations, but not in other negotiations such as those with Japan or Singapore. The same pattern holds for NPs, which seem to have increased their interaction with the executive, but looking at Figure 11.2, these enhanced relations focus on highly politicised agreements such as TTIP (2015) and CETA (2016). The focus on highly politicised areas of executive–legislative relations confirms our second and fourth expectations, reasoning that executive–legislative interaction is strongest in cases where politicisation is high and there is a need for increased legitimacy. Assessing our findings against the framework of this volume,78 we find a recalibration of executive–legislative relations in EU trade policy to the benefit of both the EP and NPs. Executive–legislative interaction focuses little on the Council and instead on the Commission or, in the case of NPs, on their national governments. While we might want to attribute some of these developments to the empowered role of legislators in the Lisbon Treaty, the empirics in this chapter suggest that the exceptional politicisation and need for legitimacy revolving around the ACTA, CETA and TTIP negotiations provoked these dynamics.



78 D

Fromage, A Herranz-Surrallés and T Christiansen in this volume.

12 The European Parliament’s Role in the Operation of Trade Agreements: Parliamentary Control and Executive–Legislative Balance in External Action WOLFGANG WEIβ*

I. Introduction The role of the European Parliament (EP) in European Union (EU) legislation and the conclusion of international agreements has incrementally expanded in the wave of EU treaty reforms, which considered increased parliamentary empowerment as a route to strengthening the legitimacy of EU decision-making,1 and responded to case law of the Court of Justice of the European Union (CJEU) amending the EP’s powers.2 The Lisbon Treaty brought about the equal role of the EP alongside the Council in ordinary legislation and

* This chapter has received funding from the EU’s Horizon 2020 programme under the Marie SkłodowskaCurie grant agreement No. 721916. 1 See J Bast, ‘New Categories of Acts after the Lisbon Reform: Dynamics of Parliamentarization in EU Law’ (2012) CML Rev 885, 891 ff; M Krajewski, ‘External Trade Law and the Constitution Treaty: Towards a Federal and More Democratic Common Commercial Policy’ (2005) CML Rev 91; M Pollack, The Engines of European Integration (Oxford, Oxford University Press, 2003) 383 ff. 2 See, eg, Case 138/79 Butter- und Eier-Zentrale Nordmark eG v Hauptzollamt Hamburg-Jonas [1980] ECLI:EU:C:1980:67, paras 33 f (consultation is essential formality, rooted in principle of democracy); Case 70/88 European Parliament v Council of the European Communities [1991] EU:C:1990:217; Case C-316/91 European Parliament v Council of the European Union [1994] ECLI:EU:C:1994:76, paras 9 ff (extension of legal standing); Case C-658/11 Parliament v Council [2014] ECLI:EU:C:2014:2025, paras 79, 81; Case C-263/14 Parliament v Council (PTA Mauritius) [2016] ECLI:EU:C:2016:435, paras 73, 76 f (scope of information rights to include negotiation directives and provisional application, also in CFSP); Case C-65/90 Parliament v Council [1992] ECLI:EU:C:1992:325, paras 17 ff (participation also in amended drafts); most recently Case C-73/17 French Republic v European Parliament [2018] ECLI:EU:C:2018:787, paras 28 ff, 32, 44; See also F Terpan, ‘The CJEU and the External Powers of the Parliament: Self-Restraint or Activism?’ in JS Vara and S Sánchez-Tabernero (eds), The Democratisation of EU International Relations through EU Law (Abingdon, Routledge, 2019) 39; F Terpan and S Saurugger, ‘The CJEU and the Parliament’s External Powers since Lisbon: Judicial Support to Representative Democracy?’ in O Costa (ed), The European Parliament in Times of EU Crises (London, Palgrave Macmillan, 2019) 77, 85 ff.

210  Wolfgang Weiß established a requirement of EP consent to the conclusion of certain international agreements, including international trade agreements (Article 218 (6)(a)(v) in combination with Article 207(2) of the Treaty on the Functioning of the European Union (TFEU)), in addition to its long-established right of being informed in all stages of the treaty-making procedures (Article 218 (10) TFEU). Augmenting the EP’s role in the conclusion of trade agreements is particularly welcome, given the proliferation of EU Free Trade Agreements (FTAs) since the adoption of the Global Europe Strategy of the European Commission in 2006.3 Due to its enhanced competences in the conclusion of FTAs, the EP has become actively involved in the negotiations. It became an actor in trade policy alongside the executive, ie, the Council of the European Union and the Commission. The Lisbon Treaty’s re-arrangement of the executive–legislative relationship brought about a rebalancing to the advantage of the EP in legislating and treaty-making. In contrast to negotiation and conclusion, the role of the EP in implementation and operation of FTAs is low. Primary law does not provide the EP with a function in the implementation of agreements, except for adopting the framework for their implementation in the ordinary legislative procedure (Article 207(2) TFEU). In particular with regard to the institutions established by FTAs for their application and implementation, the EP is not involved. FTAs entail the establishment of common bodies, usually joint committees that are entrusted with certain tasks in order to amend, implement and adjourn the agreement. Decision-making powers transferred to common bodies facilitate the agreement’s implementation and application.4 However, these powers go beyond mere executive implementation. They have become increasingly comprehensive and include decision-making on significant issues, even rule-making and treaty changes. Nevertheless, the EP has no say in the decision-making of these bodies, it is not represented there and it does not have meaningful powers of scrutiny. The EU’s position to be represented in the treaty bodies is adopted by the Council only (see Article 218(9) TFEU). In most cases, the Commission represents the EU in these bodies, and the decision-making of these bodies is only steered by the Council’s position on behalf of the EU. This imbalance between a strong position of the EP in legislating and treaty-making and its weak position when it comes to decision-making by treaty bodies raises concerns as to the democratic legitimacy of this process and the respect of the institutional balance between the executive and the legislative in the EU. As the EP’s role in the decision-making of such executive institutions is limited, despite the increasing importance of this decision-making, the balance between the executive and the legislative in trade policy is shifting back in favour of the executive branch. This chapter will therefore explore this change in more detail and develop ways in which the EP’s role in the implementation of trade agreements could be strengthened in accordance with its power in treaty-making and as a legislator. This chapter therefore analyses and compares the functions of the EP in the negotiation and conclusion of FTAs to those in their implementation and operation (section II). To demonstrate the strong executive dimension of treaty bodies and the implied power shift to the benefit of the executive, it then explores the role and decision-making powers of treaty

3 Communication of the Commission, ‘Global Europe: Competing in the World’ COM (2006) 567. 4 See, eg, art 26.1(3), (4) of the Comprehensive Economic and Trade Agreement with Canada (CETA) or art 16.1(3) of the EU–Singapore Free Trade Agreement (EUSFTA).

The European Parliament’s Role in the Operation of Trade Agreements  211 bodies from the perspective of delegation (section III) as their exercise of public powers results from a conferral of public powers to them.5 I will show that treaty bodies exercise significant public powers by virtue of broadly drafted mandates in FTAs. Their increasing use strengthens the role of the executive to the detriment of the powers of the EP, in particular its powers to amend treaties and to legislate. The final sections determine ways of protecting the EP’s prerogatives and of recalibrating the balance between the executive and the legislative in the EU again: One is to constrain the use of delegation of powers to treaty bodies. The constitutional boundaries to delegation of powers in light of democratic legitimacy and institutional balance will therefore be explored (section IV). The other is to introduce stronger mechanisms of parliamentary control in order to offset the shift in balance (section V).

II.  The Role of the EP in the Birth and Life of Trade Agreements A.  Preparation, Negotiation and Conclusion The EP has substantially gained significance in the conclusion of international agreements through Lisbon, even though there are still areas of mere consultation. The distinction between a consent or a mere consultation requirement under Article 218(6) TFEU mirrors the EP’s internal (legislative) decision-making powers. Accordingly, consent is needed in case agreements cover fields to which the ordinary legislative procedure applies,6 or the special legislative procedure where the latter requires consent of the EP. The EP is excluded from agreements relating exclusively to the Common Foreign and Security Policy. Hence, the internal division of powers between the Council and the EP (in legislating) is transferred to treaty-making. Consequently, the Council and the EP have symmetrical powers in terms of legislating and treaty-making; they ‘enjoy the same powers in relation to a given field, in compliance with the institutional balance provided for by the Treaties’.7 Specifically, the EP enjoys two types of powers in treaty making: the right to be informed (Article 218(10) TFEU) and the right to give or deny consent. The details of the information rights have been hammered out in the interinstitutional Framework Agreement on relations between the EP and the Commission of 20 October 20108 (hereinafter the Framework Agreement) with a view to accomplishing equality between the Council and the EP regarding access to information.9 The right to be informed under Article 218(10) ensures the EP’s capacity of democratic scrutiny of the EU’s external action, in particular ‘to verify that its powers are respected specifically as a result of the choice of legal basis for a decision’.10 5 See PJ Kuijper, ‘Recent Tendencies in the Separation of Powers in EU Foreign Relations: An Essay’ in E Neframi and M Gatti (eds), Constitutional Issues of EU External Relations Law (Baden-Baden, Nomos, 2018) 201, 225; W Weiß, ‘Delegation to Treaty Bodies in EU Agreements: Constitutional Constraints and Proposals for Strengthening the European Parliament’ (2018) 14(3) European Constitutional Law Review 532, 534–43. 6 Article 294 TFEU. 7 Parliament v Council (n 2) para 56. 8 [2010] OJ L304/47. For a detailed analysis of the Framework Agreement, see Marco Urban, ch 2 in this volume. 9 L Puccio and R Harte, ‘The European Parliament’s Role in Monitoring the Implementation of EU Trade Policy’ in Costa (n 2) 387, 395. 10 Parliament v Council (PTA Mauritius) (n 2) para 80.

212  Wolfgang Weiß These rights enable the EP to exercise control functions and to play a significant political role from the start of the negotiations.11 It can even respond to the Commission’s or the High Representative’s draft of negotiating authorisation or directives,12 which requires it to have access to them, as stressed by the CJEU.13 The EP called for a sincere and active implementation of the right to be informed under Article 218(10), to the effect ‘that Parliament be immediately, fully and accurately informed at all stages of the procedures for concluding international agreements, including agreements concluded in the area of CFSP, and be given access to the Union’s negotiation texts, subject to the appropriate procedures and conditions, so as to ensure that Parliament can take its final decision with an exhaustive knowledge of the subject matter’. It postulated that the ‘committee members concerned should have access to negotiation mandates and other relevant negotiating documents’.14 As expected,15 the EP uses its position as a veto player and its information rights to effectively enter into a constant dialogue with the Commission, in particular via its Committee on International Trade (INTA), and to express its political preferences and ideas by resolutions from the start. Accordingly, the EP enjoys the right to ‘express its point of view’ and the Commission is challenged to ‘take Parliament’s views as far as possible into account’.16 The Commission must keep Parliament regularly and promptly informed of the negotiations until the agreement is signed (usually done in regular meetings with the ad hoc groups in the INTA, whose majority views the Commission takes into account),17 and must explain whether and how the views and comments were incorporated into the texts and, if not, why not.18 As a result, the EP also contributes to policy formation in informal ways and influences the substance of a treaty under negotiation, in particular with regard to the linking of trade with social, labour, sustainability and environmental issues.19 The EP already denied its consent to international treaties.20 However, since the EP can influence the content of FTAs, its willingness to deny consent might be reduced, considering the political costs for the EU’s external credibility after protracted negotiations.21 11 See para 1 of Annex III to the Framework Agreement. 12 See Framework Agreement, para 23. 13 Parliament v Council (PTA Mauritius) (n 2) paras 75 ff, also with regard to the CFSP. See also AP van der Mei, ‘EU External Relations and Internal Inter-institutional Conflicts: The Battlefield of Article 218 TFEU’ (2016) 23(6) Maastricht Journal of European and Comparative Law 1051, 1066 f. 14 See para 46 of EP Resolution A7-0120/2014 on the Report on the Implementation of the Treaty of Lisbon with Respect to the European Parliament (2013/2130(INI)). 15 See E Brok, ‘Die neue Macht des Europäischen Parlaments nach ‘Lissabon’ im Bereich der gemeinsamen Handelspolitik’ (2010) 3 integration 209. 16 See Framework Agreement, para 24. 17 F Hoffmeister, ‘Of Rransferred Competence, Institutional Balance and Judicial Autonomy: Constitutional Developments in EU Trade Policy Seven Years after Lisbon’ in J Czuczai and F Naert (eds), The EU as a Global Actor. Liber Amicorum Gosalbano Bono (Leiden, Brill, 2017) 309, 323. 18 See paras 4 and 5 of Annex III to the Framework Agreement. 19 See K Meissner, ‘Democratizing EU External Relations: The European Parliament’s Informal Role in SWIFT, ACTA and TTIP’ (2016) 21(2) European Foreign Affairs Review 269; A Ott, ‘The European Parliament’s Role in EU Treaty-Making’ (2016) 23(6) Maastricht Journal of European and Comparative Law 1009; G Rosen, ‘The European Parliament’ in S Khorana and M Garciá (eds), Handbook on the EU and International Trade (Cheltenham, Edwartd Elgar, 2018) 117, 118, 122 ff; R Schütze, Foreign Affairs and the EU Constitution (2014), 385 f; R Wessel and T Takács, ‘Constitutional Aspects of the EU’s Global Actorness’ [2017] European Business Law Review 103, 113 f. 20 See C Eckes, ‘How the European Parliament’s Participation in International Relations Affects the Deep Tissue of the EU’s Power Structures’ (2014) 12(4) International Journal of Constitutional Law 904, 910 f, 917; Meissner (n 19) 273 f. 21 Eckes (n 20) 923 f.

The European Parliament’s Role in the Operation of Trade Agreements  213 Thus, at least in preparing and concluding FTAs, the EP has a considerable political function that is almost equivalent to that of the Council. This also applies to their provisional application, even though Article 218(5) attributes the decision to the Council. In political practice nowadays, the Council will only activate a provisional application once the EP has consented.22

B.  Operation and Implementation at the International Level In stark contrast to this decisive political and legal function of the EP in negotiating and concluding FTAs, its part in their operational phase once (provisionally) entered into force is very low and has hitherto not been the object of further demands by the EP, even though, as far as the internal implementation of obligations resulting from FTAs is concerned, the EP is responsible in the event that implementation requires the change or adoption of secondary EU law. At the international level, the EP hardly participates in the daily application and implementation of an FTA. Basically, of course, this is not a cause for concern as the EP is not an executive or administrative institution. Applying and implementing rules is not the work of a parliament. However, parliamentary function also pertains to controlling executive institutions in their implementation of agreements as legislatures want to ensure that the executive does not exceed its powers and that policies obtain their objectives and meet citizens’ expectations.23 The effective control that the EP exercises with regard to the operation of FTAs is limited. The information requirement in Article 218(10) TFEU does not apply in the implementation phase (with one exception). Of course, there are informal channels of information about the implementation of FTAs (like exchange with stakeholders, delegations, in-house research and workshops),24 and the EP also expanded the task of specific monitoring groups set up for new FTAs to discuss FTA implementation,25 but these instruments of monitoring merely enable ex post control. A formal EP influence in the course of implementation, comparable to its position during the negotiation phase, is not foreseen. An extremely limited control capacity of the EP exists in particular with regard to the decision-making by FTA treaty bodies. As shown above, the decision that sets the EU position in the treaty bodies is adopted by the Council. The EP is not involved, nor does it participate in the decision-making of the treaty bodies; it is only informed of the Council positions under Article 218(10) TFEU. This rule provides for information ‘at all stages of the procedure’, which includes information on the positions of the Council in preparation for a decision of a treaty body, but may also include information on the Commission draft. In the past,

22 See EP Resolution of 13 March 2014 on the Implementation of the Lisbon Treaty (2013/2130 (INI)), and para 7 of Annex III to the Framework Agreement. The right to information with regard to provisional application was confirmed by Parliament v Council (PTA Mauritius) (n 2) para 76. For the EP’s role in the provisional application, see G van der Loo, ‘National Parliaments and Mixed Agreements: Exploring the Legal Bumps in a Rocky Relationship’ in Vara and Sánchez-Tabernero (n 2) 210, 222; R Passos, ‘Some Issues Related to the Provisional Application of International Agreements and the Institutional Balance’ in Czuczai and Naert (n 17) 380, 384, 387 et seq. 23 Puccio and Harte (n 9) 390 ff, 409. 24 ibid 394 ff. 25 They consist of INTA members, staff working for the EP and Commission staff. See ibid 396, 400, 408.

214  Wolfgang Weiß the immediate disclosure of the Council’s position to the EP was provided explicitly in Article 300(2) ECT Amsterdam/Nice.26 In practice, the EP was mainly informed about the Council’s decision ex post facto.27 Even though the Lisbon Treaty no longer explicitly mentions the provision of information on decisions under Article 218(9), the level of information that the EP receives about Council positions is the same as before. The general information rule in Article 218(10) TFEU aimed at increasing the information given to the EP, not reducing it. In any case, the EP already assigns itself a right to information on a draft Council decision under Article 218(9). In Article 109 of its Rules of Procedure, it gave itself the right to have a debate and to issue recommendations once the Commission proposes a draft. This appears to be the EP’s response to the fact that it does not have a formal say in the adoption of such a Council position and as the EP is not present at the international level when the treaty bodies subsequently adopt their decisions. Treaty bodies consist of representatives of the parties.28 Members of the EP are not present, nor do they have observer status. The Framework Agreement foresees EP members as observers at international conferences, as part of the EU delegation,29 but not in bilateral negotiations or within treaty bodies. Furthermore, even if the EP adopts a resolution giving recommendations to the Council, there is no agreement between the Council, the Commission or the EP that could guarantee that the recommendations are considered. The rule provided in Article 109 of the Rules of Procedures is only binding for the EP; it is a unilateral act. The Framework Agreement entered into between the Commission and the EP does not provide for a right of the EP to follow up on its recommendations with regard to the Commission’s drafts to a Council position. The Framework Agreement only provides such a right with regard to the recommendations of the EP during the negotiating phase of an agreement.30 The Commission and the EP agreed in their Framework Agreement that the Commission will keep the EP systematically informed about meetings of treaty bodies set up by ‘multilateral international agreements involving the Union’, and the Commission will ‘facilitate access as observers for Members of the EP’ as part of EU delegations to meetings of such bodies. But both participatory rights are limited to multilateral as opposed to bilateral agreements and only apply if the treaty bodies ‘are called upon to take decisions which require the consent of the EP or the implementation of which may require the adoption of legal acts in accordance with the ordinary legislative procedure’.31 Hence, these procedures do not apply

26 See B Martenczuk, ‘Decisions of Bodies Established by International Agreements and the Community Legal Order’ in V Kronenberger (ed), The EU and the International Legal Order (Dordrecht, Springer, 2001) 141, 150 et seq. 27 Hoffmeister, ‘The EU in the WTO: A Model for the EU’s Status in International Organizations?’, in Kaddous (ed), The EU in International Organisations and Global Governance (2015) 121, 124. 28 For example, the CETA Joint Committee is composed of representatives of Canada and the EU, usually the Trade Commissioner (art 26.1.1 CETA). 29 See paras 25 ff of the Framework Agreement on relations between the European Parliament and the European Commission [2010] OJ L304/47. With regard to multilateral as opposed to bilateral agreements, para 26 provides that the Commission ‘facilitate access as observers for [MEP] forming part of Union delegations to meetings of bodies set up by multilateral international agreements involving the Union, whenever such bodies are called upon to take decisions which require the consent of Parliament or the implementation of which may require the adoption of legal acts in accordance with the ordinary legislative procedure’. 30 See para 4 of Annex III to the Framework Agreement. 31 See para 26 of the Framework Agreement.

The European Parliament’s Role in the Operation of Trade Agreements  215 to treaty bodies established in bilateral FTAs,32 and even if they did, due to their restricted ambit, they would not provide for a general participation of the EP in the decision-making of treaty bodies established in bilateral FTAs. Another simplified procedure of entering into international obligations inherited from pre-Lisbon times is provided in Article 218(7) TFEU,33 under which the Council may authorise the Commission to approve on the EU’s behalf amendments to an agreement where it provides for their adoption in a treaty body.34 Again, the EP is not involved in the Council’s decision-making, even though this may concern the change of an agreement that was subject to the EP’s approval. The EP is only informed by the Commission before the latter approves modifications to agreements.35 In conclusion, the EP does not enjoy formal mechanisms of effective ex ante control of the implementation of FTAs. In international relations, ex ante control is particularly important as rules agreed with a third party cannot be changed unilaterally. The EP’s position in the operation of trade agreements, in particular as regards the decision-making of treaty bodies, does not allow the EP to have any meaningful influence on the substance of their decisions. Effective control of the EU executive by the EP even ex post is not ensured. Whereas in the preparation and conclusion of an FTA, the EP is fully involved and may be able to enforce its ideas and preferences (not least by threatening to deny consent), once the FTA has entered into force, its operation can hardly be accompanied in a meaningful, decisive way by the EP. The EP can raise concerns as to the implementation of an agreement only ex post and can take sanctions under its general accountability mechanisms (eg, inquiries – Article 230(2) TFEU), or the ultima ratio of a motion of censure, Article 17(8) TEU in conjunction with Article 234 TFEU). This does not cause concerns as long as the powers of treaty bodies only relate to executive implementation. However, treaty bodies are increasingly entrusted with political functions of discretionary rule-making, treaty amendment and decision-making on quite substantial, essential issues. Their use insofar has expanded considerably with the new type of comprehensive FTAs since the EU–South Korea Agreement signed in 2009. Thus, one can perceive a strengthened position of the executive in the implementation of FTAs, against which the lack of effective control powers of the EP proves problematic. An increase in executive powers, in particular by conferring competences for general rule-making and treaty amendment, raises the level of democratic legitimacy required as the necessary level of democratic legitimacy of exercising public powers depends on the importance, relevance and legal effects of the specific tasks, functions and powers transferred to an executive institution.36 32 Puccio and Harte (n 9) 396. 33 Article 218(7) is a further simplification of art 218(9) TFEU; see Case C-73/14 Council v Commission [2015] ECLI:EU:C:2015:490, Opinion of AG Sharpston, para 67; Case C-600/14 Germany v Council [2017] ECLI:EU:C:2017:296, Opinion of AG Maciej Szpunar, para 57. 34 See, eg, Art 2 of the Council Decision 2017/38 on the provisional application of CETA, OJ (2017) L 11/1080 according to which Art 218 (7) applies to the adoption of the CETA Joint Committee decision under Art 20.22 CETA to amend Annex 20-A. 35 See Annex III, para 9 of the Framework Agreement between Commission and EP. 36 See with regard to delegation to the EU P Lindseth, ‘Power and Legitimacy. Reconciling Europe and the Nation-State’ (2012) 8 European Constitutional Law Review 153 at 156 ff. See also German Federal Constitutional Court, Judgment of 30 June 2009 (Lisbon Treaty), Case 2 BvE 2/08, ECLI:DE:BVerfG:2009:es20090630.2bve000208, para 262.

216  Wolfgang Weiß Therefore, the next section will explore the considerably strengthened powers of executive institutions in the implementation of FTAs with the advent of the new generation of EU FTAs in more detail, the cornerstone of which is the expanded empowerment of treaty bodies.

III.  Strengthening the Executive by Delegating Powers to Treaty Bodies A.  The Implementation Powers of Treaty Bodies: Amending and Expanding the Regulatory Framework of FTAs Treaty bodies are executive institutions established in EU FTAs, association agreements and the like. One of the earliest treaty bodies is the Association Council in the Association Agreement with Turkey that, based on an explicit mandate in the Additional Protocol of 1970,37 lays down binding rules for the labour market access of Turkish nationals in the EU. The use of treaty bodies and the scope and breadth of their competences has been increased, particularly with the new EU FTAs. EU FTAs establish such bodies ever more frequently, which is a reflection of the international move towards the delegation of authority to international actors.38 A trade committee has been set up in the FTA with Korea,39 the binding decisions of which concern customs duties,40 but may also provide for treaty amendments and authoritative interpretations.41 The FTA with Canada (CETA) provides for a Joint Committee and a system of specialised Committees. The same applies to the FTAs with Singapore or Japan.42 These treaty bodies are authorised to make binding decisions on diverse, even rather fundamental issues. Their decision-making powers merely cover the technical-administrative implementation of FTA obligations, but they may also decide rather fundamental issues or issues of far-reaching significance, including the adoption of general rules interfering with the fundamental rights of traders.43 Thus, treaty bodies may exercise regulatory and even legislative powers (ie, powers to adopt general rules). Rule-making is implied, for example, in the CETA Joint Committee’s mandate to set out administrative and organisational aspects of the functioning of the Appellate Tribunal, including procedural issues,44 or the Committee on Services and Investment’s mandate to establish a code of conduct for the investment tribunal members that may address issues of disclosure, confidentiality, impartiality and independence, and procedural and transparency rules.45 37 Art 36 ff Additional Protocol, annexed to the Agreement establishing the Association between the European Economic Community and Turkey, OJ EC (1977) L 361/59. 38 C Bradley and J Kelly, ‘The Concept of International Delegation’ (2008) 71 Law and Contemporary Problems 1. 39 Art 15.4 EU Korea FTA, OJ EU (2011) L 127, 6. 40 Art 2.5.4 EU Korea FTA. 41 Art 15.5.2 EU Korea FTA regarding Annexes, Protocols and Notes; Art 15.1.4 d) on binding interpretations. 42 Art 26.1 ff CETA; Art 16.1 ff EUSFTA; Art 22.1 ff JEFTA. 43 Art 21.7 (5) CETA: the Committee on Trade in Goods can endorse implementation measures for the mutual exchange of product warnings between EU and Canada, which enable the Committee to set common standards including on protecting personal data and business secrets. 44 Art 8.28 (7) CETA. 45 Art 8.44 (2) and 8.44 (3 b) CETA.

The European Parliament’s Role in the Operation of Trade Agreements  217 The treaty bodies may also modify or amend the FTAs’ texts and their annexes,46 and issue binding interpretations of the FTAs.47 Finally, the treaty bodies may also change the institutional architecture of FTAs by dissolving or establishing further special committees that alter or take over the powers of the committees already provided in the FTAs.48 Hence, FTA treaty bodies have rather diverse functions, from mere administrative implementation, to adjudication,49 to decision-making on fundamental issues, and to rule-making by generating norms and treaty amendments.

B.  The Executive Nature of Treaty Bodies Treaty bodies consist of representatives of the FTA parties. For the EU, this is usually the Commissioner responsible for trade.50 Consequently, the treaty bodies are not actors that are independent of the parties’ will. Nevertheless, their powers lead to decisions that are binding on the parties. Decisions taken by the FTA committees immediately become binding under international law and must be implemented. Only in very few cases, due to special arrangements in the FTAs explicitly indicated there, must treaty bodies’ decisions be ratified or otherwise subsequently accepted or approved by the parties in order to become binding on the parties.51 The relevant rules for the preparation of this autonomous decision-making of the treaty bodies within the EU are found in Article 218(7) and (9) TFEU. These rules again empower executive institutions, ie, the Commission and the Council, with the preparation and adoption of the EU decisions preparing the decision-making of treaty bodies. As already shown, the EP is not involved. Hence, the decision-making competences of the treaty bodies constitute public powers transferred to the Committees by the EU (and, in the case of mixed agreements, by the Member States) with the (provisional) entry into force of trade agreements. These powers are the object of delegation from the parties to an international treaty to international institutions (ie, FTA treaty bodies) as they are bestowed with powers to amend and implement the international treaty that otherwise would have been the competence of domestic institutions of the parties. The deliberate inclusion of rules for decision-making in treaty bodies in Article 218(9) TFEU, the binding effect of their decisions simply by virtue of their adoption by the treaty bodies, and finally the wording in Article 218(9), according to which these bodies are responsible for the adoption of ‘acts having legal effects’ (and not for the acceptance of an EU treaty offer) argue in favour of the adoption of legal acts as an 46 See, eg, Art 8.1, Art 8.10 (3), Art 2.13 (1 b), Art 4.7 (1 f) i.c.w. Art 26.1 (5 c), Art 23.11 (5), Art 20.22 (1) i.c.w. Art 26.1 (5 c) CETA. 47 Art 8.31 (3), 8.44 (3), 26.1 (5 e) CETA. 48 See, eg, Art 26.1 (5 a), g) and h) CETA. 49 Under Art 6.14 (4) i.c.w. Art 2.8 (4) CETA, the Customs Cooperation Committee can resolve customs issues. 50 See, eg, Art 26.1 CETA. 51 For a detailed analysis of the CETA insofar see W Weiß, ‘Delegation to treaty bodies in EU agreements: constitutional constraints and proposals for strengthening the European Parliament’ (2018) EuConst 532 at 536–539. In the FTA with Korea Art. 15.4 provides the binding force of the decisions of the Trade Committee. A requirement of prior acceptance by the parties is only provided with regard to amendments, Art 15.5.2. For other agreements see J Czuczai, ‘The Autonomy of the EU Legal Order and the Law-making Activities of International Organizations: Some Examples Regarding the Council’s most Recent Practice’ (2012) 31 Yearbook of European Law 452; N Appel, Das internationale Kooperationsrecht der EU (2016) 211 et seq.

218  Wolfgang Weiß expression of a genuine transfer of public powers to the treaty bodies by virtue of a delegation. Delegation in this context is understood as a transfer of decision-making powers to institutions on the basis of a legal act that forms its legal basis. The wording of Article 218(9) entails a very broad notion of the type of powers that can be delegated to treaty bodies. Hence, Article 218(7) and (9) constitutes special regimes for the EU internal adoption of secondary law from international organisations or treaty bodies.52

C.  Shifting the Balance towards the Executive, and Back Again Transferring decision-making powers to treaty bodies conforms to the delegation of public powers from the legislative to executive institutions. This is confirmed when analysing their legal effects: the decisions of treaty bodies may, not least in the view of the CJEU, influence the content of EU legislation53 and form an integral part of the EU legal system.54 Hence, one must conclude that the treaty bodies when issuing binding decisions exercise domestically relevant public powers that have been delegated to them by the EU by way of establishing their competences in agreements. Their powers have been transferred to them by way of treaty-making, which is done by the EU legislator, as shown above. Therefore, the EP, by virtue of its consent to the FTA and the treaty bodies’ mandates therein, delegates part of its powers of legislating and treaty-making to treaty bodies. The new generation of EU FTAs have expanded their traditional scope and reach. They no longer only deal with tariffs and border issues of goods and services’ market access to the EU, but also regulate behind the border issues like professional qualifications, service provision and manufacturing practices. Therefore, these FTAs also have an impact on domestic regulation. As they place some of the implementation as well as amendment and rule-making powers in the hands of treaty bodies, the executive gains influence, whereas the EP’s influence is lost. The EP does not take part in the treaty bodies’ rule-making and treaty amending, nor does it have effective control powers of these, as shown above. The EP’s control powers have not expanded along with the proliferation of treaty bodies. In contrast, the Commission and the Council are directly involved in the treaty bodies’ decision-making and have decisive influence in this respect. This shift of power to the benefit of executive institutions has gained momentum with the proliferation of treaty bodies in new-generation FTAs, both with regard to their sheer numbers, but also with regard to their ever more comprehensive powers, based on quite broad mandates. Thus, the establishment of a sophisticated treaty body system in EU FTAs is capable of evaporating the EP’s legislative and treaty-making powers. This calls for a rebalancing of the EP’s control powers.

52 See N Appel, Das internationale Kooperationsrecht der EU (2016) 324 et seq; Germany v Council (n 33) paras 58, 162; A von Bogdandy, F Arndt and J Bast, ‘Legal Instruments in European Union Law and Their Reform: A Systematic Approach on an Empirical Basis’ (2004) 23 Yearbook of European Law 91, 130; A Alemanno, ‘The Regulatory Cooperation Chapter of the Transatlantic Trade and Investment Partnership: Institutional Structures and Democratic Consequences’ (2015) 18 Journal of International Economic Law 625, 636. 53 Case C-399/12 Germany v Council [2014] ECLI:EU:C:2014:2258, para 63. For some practical examples, see J Czuczai, ‘The Autonomy of the EU Legal Order and the Lawmaking Activities of International Organizations: Some Examples Regarding the Council’s Most Recent Practice’ (2012) 31(1) Yearbook of European Law 452. 54 Case 30/88 Greece v Commission [1989] ECLI:EU:C:1989:422, para 13; N Lavranos, Legal Interaction between Decisions of International Organisations and European Law (Groningen, Europa Law Publishing, 2004) 35 ff, 53, 93.

The European Parliament’s Role in the Operation of Trade Agreements  219 Its powers have to be strengthened again to keep pace with the increased use of delegation of rule-making and treaty amendment powers to the executive. Another way of rebalancing the power shift implied in comprehensive power delegation to treaty bodies would be by limiting the scope of delegation. This will be analysed in the following section, while the last section will present proposals for increased EP involvement in treaty body decision-making.

IV.  Constraining Delegation to Treaty Bodies The results of this chapter so far have shown that the EP’s powers can be jeopardised by the delegation of comprehensive powers to treaty bodies. As the EP’s powers and its accompanying prerogatives serve its democratic functions,55 comprehensive decision-making powers of treaty bodies that go beyond mere executive implementation may violate the requirements of institutional balance and democracy set by the EU Treaties. These constitutional requirements necessarily limit the scope of delegation available to treaty bodies. Their use must be constrained. This section will explore the constraints on delegation to the executive. These constraints will then be applied to the transfer of powers to treaty bodies.

A.  Constraints on Delegation to the Executive in EU Law The delegation of rule-making to executive actors on the basis of enabling acts is explicitly provided for since Lisbon in Articles 290 and 291 TFEU, and in both cases it is (mainly) the Commission which is the delegate. Under Article 290, legislative acts may bestow the Commission with the authority to adopt delegated acts of general application that amend legislative acts (and hence are quasi-legislative),56 whereas under Article 291(2), the Commission may be entrusted with the power to adopt (also general) implementing acts, in continuation of the Comitology system.57 Besides, there exist other forms of delegation to adopt individual decisions or general rules, in particular to EU agencies.58 Common to these variations of internal delegation is the requirement of a basic enabling legal act that establishes the mandate of the delegate. The object of delegation is rather broad: the delegate may supplement or even amend the enabling act in its substance, or may implement it by applying it to individual cases or by adopting general rules that add more detail in order to make general stipulations of the basic act applicable. The delegation of decision-making powers to the treaty bodies of FTAs fits into the basic structures of the internal types of delegation: treaty bodies also adopt binding acts of general application to implement an agreement by specifying details or by amending its text; the competences for doing so must be provided for in the agreement entered into by the EU.

55 Also in external relations, see Parliament v Council (n 2) para 81. 56 cf J Bast, ‘New Categories of Acts after the Lisbon Reform: Dynamics of Parliamentarization in EU Law’ (2012) CML Rev 885, 917; P Craig, The Lisbon Treaty (Oxford, Oxford University Press, 2013) 264. 57 For the development of Comitology, see C Bergström, Comitology: Delegation of Powers in the EU and the Committee System (Oxford, Oxford University Press, 2005); for its reform under Lisbon, see C Bergström and D Ritleng (eds), Rulemaking by the European Commission (Oxford, Oxford University Press, 2016). 58 Case C-270/12 United Kingdom v Parliament and Council (Short Selling) [2014] ECLI:EU:C:2014:18.

220  Wolfgang Weiß In a democratic order such as the EU,59 the exercise of public powers by executive institutions is legitimate only if their establishment is subject to a parliamentary decision or at least a parliamentary participation.60 This requirement is confirmed by Article 290, as delegation requires a legislative basic act. Also, the delegation to agencies pre-supposes the adoption of a legislative act.61 Under Article 291 TFEU, transferring implementing powers to the Commission involves the legislature by way of enacting the control mechanisms in a legislative act.62 Indeed, the EP – alongside the Council – is involved in the delegation of powers to treaty bodies as it gives consent to the empowering FTAs. As can be learned from comparative constitutionalism, as well as from principal-agent theory, delegation is never unlimited. Comparative constitutionalism analyses demonstrate that the delegation of powers from the legislator to the executive is subject to constraints. Domestic orders such as US constitutional law contain a non-delegation doctrine that draws red lines.63 Similarly, in Germany, the delegation of legislative powers to the executive is limited by the stipulations of Article 80 of the Basic Law and by the doctrine that the legislator itself must regulate the essential aspects of a legal act. Similar limits to (internal) delegation of rule-making to the executive exist under EU law: Article 290 (1) TFEU provides that the essential elements of an area shall be reserved for the legislator and shall not be the subject of delegation. Rule-making by the executive on fundamental issues, ie, the basic elements of a matter, is unconstitutional. They must be reserved to the legislature because of their political nature as they comprise political or strategic decisions on the fundamental orientation of an EU policy. Such decisions require immediate democratic legitimation as they imply wide discretion, in particular the need for political choices that weigh up conflicting policy aims and interests.64 Likewise, the objectives, content, scope and duration of the delegation shall be explicitly defined in the legislative act; hence, delegation must not be unspecified, but must precisely determine and circumscribe the powers transferred.65 Besides, delegation must be accompanied by control mechanisms. The EP – like the Council – is entitled to revoke the delegation or reserve a veto so that it can review the exercise of delegated powers and any discretion transferred therein (Article 290(2)). Such mechanisms counterbalance the derogation from the principle of separation of powers inherent in the delegation of rule-making powers to the executive, and thus ensure observance of the requirements of democratic legitimacy.66 Even the delegation of implementing 59 Article 10 TEU. 60 See art 289(2) TFEU. 61 For the EP’s involvement in setting up agencies, see F Jacobs, ‘EU Agencies and the European Parliament’ in M Everson, C Monda and E Vos (eds) European Agencies in between Institutions and Member States (Alphen aan den Rijn, Wolters Kluwer, 2014) 201 ff. 62 Article 291(3) TFEU. 63 For an overview, see R Schütze, ‘“Delegated” Legislation in the (New) European Union: A Constitutional Analysis’ (2011) 74 MLR 661, 663 ff. 64 Case C-355/10 Parliament v Council [2012] ECLI:EU:C:2012:516, paras 64–67, 76, 78; Case C-240/90 Germany v Commission of the European Communities [1992] ECLI:EU:C:1992:408, para 37. Not entirely negligible interferences with fundamental rights amount to essential elements of a policy as well; see Case C-363/14 Parliament v Council [2015] ECLI:EU:C:2015:579, para 53; D Curtin and T Manucharyan, ‘Legal Acts and Hierarchy of Norms in EU Law’ in A Arnull and D Chalmers (eds), The Oxford Handbook of EU Law (Oxford, Oxford University Press, 2015) 103, 112. 65 See J Bast, ‘New Categories of Acts after the Lisbon Reform: Dynamics of Parliamentarization in EU Law’ (2012) CML Rev 885, 914; Case C-66/04 United Kingdom v Parliament and Council (Smoke Flavourings) [2015] ECLI:EU:C:2005:743, paras 49, 62. 66 Case C-88/14 Commission v Parliament and Council ECLI:EU:C:2015:304, Opinion of AG Mengozzi, para 45.

The European Parliament’s Role in the Operation of Trade Agreements  221 powers under Article 291 and the Comitology regulation67 is subject to constraints: the adoption of implementing acts underlies control mechanisms that ensure scrutiny by the Member States according to the legislative rules adopted by the EP and the Council in the aforementioned regulation. The conferral of implementing tasks also requires some precision as regards the scope of the powers and the provision of specific criteria to be followed. The scope of the powers and the criteria for their exercise must be set out in the enabling act with a certain degree of specificity; they must be ‘clearly defined’.68 These limitations ensure the democratic legitimacy of delegated rule-making and parliamentary control. They are also based on the constitutional principles of the institutional balance of EU organs. Constraints on delegation that result from requirements of democracy and institutional balance in the EU (initially termed the ‘balance of power’) are also enshrined in the Meroni case law that restrains the delegation of discretionary powers.69 The guiding principles of Meroni are still pertinent.70 Meroni requires the transfer of power to be limited to ‘clearly defined executive powers’.71 The powers transferred must be set out in precise terms and their exercise must be carried out under strict observance of objective criteria determined by the delegator, without granting a wide margin of discretion.72 The use of the powers has to be supervised by the delegating authority (cf the parallelism with Article 290 TFEU). Furthermore, Meroni prohibits ‘an actual transfer of responsibility’ by way of delegation, which would be the case if the delegate enjoyed a degree of latitude so that it actually exercised the political function that the EU Treaties allocate to an EU organ. Hence, delegation must not conflict with the division of powers provided for in EU primary law. The allocation of responsibilities in EU primary law must be respected. Article 218(9) TFEU confirms that constraints on delegation are not limited to internal rule-making, but also exist with regard to external action. It explicitly excludes changes to the institutional framework of an agreement from its application. Consequently, such changes to agreements must be entered into by using the normal treaty-making procedure requiring the consent of the EP.73 ‘Particularly important decisions’, such as institutional changes, were not intended to be subject to the simplified procedure, but only ‘minor and quite technical amendments’.74 Consequently, ‘particularly important decisions’ cannot be transferred to treaty bodies.75 This limitation ensures the competences of the EP and thus the institutional balance.76 67 Regulation 182/2011 of the EP and the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers. 68 See Case C-66/04 UK v European Parliament and Council of the European Union [2005] ECLI:EU:C:2005:743, paras 48 ff, 62 regarding pre-Lisbon delegation to the Commission. 69 Case 9/56 Meroni & Co v High Authority of the European Coal and Steel Community (Meroni) [1958] ECLI:EU:C:1958:7. 70 P Craig, EU Administrative Law (Oxford, Oxford University Press, 2012) 155; United Kingdom v Parliament and Council (Short Selling) (n 58) paras 41 ff. 71 Meroni (n 69); Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others [2005] ECLI:EU:C:2005:449, para 90. 72 Discretionary powers are critical as soon as they imply a wide margin of discretion; see Meroni (n 69); United Kingdom v Parliament and Council (Short Selling) (n 58) para 50; Schütze (n 63) 674, fn 89. 73 G de Baere, ‘Union Membership in International Organizations’ in R Schütze and T Tridimas (eds), Oxford Principles of EU Law, vol I (Oxford, Oxford University Press, 2018) 1234, 1246. 74 Germany v Council (n 33) para 58, fn 30. 75 Case C-399/12 Germany v Council ECLI:EU:C:2014:289, Opinion of AG Cruz Villalon, para 75. 76 ibid para 80.

222  Wolfgang Weiß Overall, there are clear constraints on delegation. First, there is an EU non-delegation doctrine. The provision of the essentials must not be delegated to executive institutions. Second, delegation pre-supposes control mechanisms. One can distinguish mechanisms of ex ante and of ex post control. Ex ante, the transferred powers must be determined with some precision. The transfer of powers requires the provision of specific criteria to be followed by the delegate. These criteria must be set out in the enabling act with certain specificity. Ex post oversight is implemented by monitoring and sanctioning powers of the delegator, like vetoes, or the withdrawal of delegation. Delegation that allows for the amendment of legislative acts must be subject to stricter control by the EU legislative than the transferral of mere implementing powers that do not alter the substance of legislation or treaties, for reasons of balance of power. Requiring specificity and control mechanisms does not indicate clear, absolute limitations to delegation, but these constraints are interrelated: The less specific a mandate is drafted or the more important decisions by a delegate are for the lives of people, the more control powers the delegator must have. As these constraints on delegation are anchored in EU constitutional principles (democratic legitimacy and institutional balance), they must also be respected with regard to the external delegation of decision-making at the international level. This can be stipulated at least with regard to external trade relations, as a consequence of the parallelism of the EP’s legislative and treaty-making powers and the symmetry of the EP’s and the Council’s competences (see section II above). Even though in traditional constitutional thinking, external relations are a particular area of policy and are accordingly subject to specific rules, which give a primacy to the executive (with the consequence of lower control standards for parliaments), such a stance nowadays does not reflect the modern reality of international relations. The domain of contemporary international legal rules considerably expanded and pertains to regulatory issues, as can be easily determined by looking at the substance of trade agreements. Hence, parliaments cannot be excluded from also having a powerful position with regard to external action.77 In conclusion, constraints on delegation contain a prohibition against transferring the regulation of essential aspects of a policy on the executive and requirements of specificity of delegation and of parliamentary control. This is confirmed by principal-agent theory: a principal will not delegate very sensitive decisions to the agent and will exercise oversight. It will establish control mechanisms to avoid agency losses, which imply checks on the ways in which the agent uses its powers,78 which may translate into ex ante guidelines on how to exercise the mandate and into ex post monitoring and sanctioning. Accordingly, the principal will specify the mandate given to the agent as clearly as possible and will determine the decisive objectives to be followed.

77 See C Möllers, The Three Branches (Oxford, Oxford University Press, 2015) 166 f. 78 R Dehousse, ‘The Politics of Delegation in the EU’ in D Ritleng (ed), Independence and Legitimacy in the Institutional System of the EU (Oxford, Oxford University Press, 2017) 57, 60 f; G Brandsma and J Blom-Hansen, Controlling the EU Executive? (Oxford, Oxford University Press, 2017) 23 ff. The application of the principal-agent model to Comitology is not uncontested, as the national representatives in the committees also engage in supranational deliberations and may prefer to search an EU solution over enforcing their national governments’ position; see Craig (n 56) 55. This institutionalists’ view confirms the principals’ need for effective control over their agent.

The European Parliament’s Role in the Operation of Trade Agreements  223

B.  Consequences for Conferring Powers to Treaty Bodies The constitutional limitation to delegation flowing from non-delegation doctrine prohibits a delegation of decision-making on fundamental issues to treaty bodies. Such decisionmaking has to be reserved to treaty-making institutions (the Council and the EP), which means that general-abstract, hence quasi-legislative rule-making on essential elements of a policy, including considerable interference with fundamental rights, cannot be transferred to decision-making by treaty bodies. Amendments can be delegated to treaty bodies only with regard to non-essential issues. Beyond such (relatively) absolute limitation, constitutional constraints on delegation also require a certain degree of specificity of the competences and the establishment of effective control mechanisms to the benefit of the EP. The mandates for treaty bodies must be determined as precisely as possible in the agreements, with regard to their scope and the criteria for their exercise. The delegation of rule-making or of decision-making implying considerable discretion on the part of treaty bodies pre-supposes control mechanisms for the EP in order to ensure its impact on the substance of the treaty bodies’ decisions. As there are no such assurances for the EP’s functions under today’s rules, the current lack of involvement of the EP militates in favour of constraining the type of delegatable powers, in conformity with the type of executive powers conferred upon the Council. Thus, the powers of treaty bodies must be limited to decisions of an administrative/executive kind that merely implement the terms of the agreement, in conformity with a formula used by the CJEU: ‘applying or implementing that agreement’.79 Even though the theoretical conceptions under both a comparative constitutional viewpoint and under the principal-agent theory align in comparable insights, the constitutional reality of delegation practice very often bears witness to a loss of control standards with regard to delegation.80 The current EU practice of increasingly making use of treaty bodies in order to delegate decision-making to international institutions in ever more substantive issues without ensuring sufficient parliamentary control may be perceived as following this unfortunate trend. An explanation for this is the presence of multiple principals in EU law, as their involvement in delegation might necessarily lead to exceedingly broad and unspecific delegations of regulatory power.81 Such a plurality of principals also exists in the case of EU FTAs.

V.  Mechanisms to Strengthen the Role of the EP in the Operation of Treaty Bodies An alternative, partly overlapping way of securing the EP’s prerogatives is to strengthen its effective control over treaty bodies’ decision-making (beyond being informed and having a debate). This is particularly required in the case of rule-making or the exercise of powers 79 Case C-73/14 Council v Commission [2015] ECLI:EU:C:2015:663, para 65. 80 B Iancu, Legislative Delegation: The Erosion of Normative Limits in Modern Constitutionalism (Dordrecht, Springer, 2012). 81 See P Lindseth, Power and Legitimacy (Oxford, Oxford University Press, 2010) 254.

224  Wolfgang Weiß implying wide discretion, especially if the decisions of treaty bodies could interfere with EU legislation. The improved mechanisms should allow a considerable, preferably ex ante, impact of the EP on the substance of the decisions. Such ways are conceivable at the international and domestic levels. Internationally, this could mean the direct involvement of the EP in the decisionmaking of treaty bodies at the international level. Members of the INTA or the responsible monitoring group could become part of the EU representative in the treaty bodies, at least as observers. As mentioned above, the Framework Agreement foresees MEPs as observers at international conferences, as part of the EU delegation. This could be amended to also include observer status in treaty bodies. The EP would receive direct information about the processes there, which would increase the effectiveness of its control over the executive due to better information and the ability to directly monitor the implementation of the EU position and EP resolutions. However, the EP would mainly be limited to ex post control, the effectiveness of which is undermined by the fact that a decision adopted in the treaty body cannot be overturned unless it is replaced by a new one on whose adoption the EP does not have any influence. Hence, ex post control by the EP could only be effective if there were ways in which the effect of a treaty body decision could terminated. Thus far, a possible remedy would be the suspension of a treaty body decision, in the same way as an agreement or parts thereof may be suspended, but for other reasons (because of acting ultra vires or of adopting illegitimate rules). However, such a remedy would be a novel feature for FTAs and so must be explicitly enshrined and set out in more detail therein. More preferable are mechanisms of ex ante control. Thus far, a suitable control mechanism could mean the introduction of (Joint) Parliamentary Assemblies with parliamentarians of the other party.82 Such an assembly could represent a forum for the common discussion of issues relating to democracy and non-economic concerns. FTAs would have to explicitly establish such assemblies and provide for their competences, in particular with regard to treaty body decision-making. They could foresee – beyond information and comments on draft decisions – suspension or veto powers in the event of rule-making decisions. At a domestic level, ex ante control would imply involving the EP in the adoption of the EU position under Article 218(9) TFEU. Immediate and full information must also be given to the EP with regard to envisaged treaty body decisions. The full information given to the EP by the Commission before approving modifications to an agreement that are authorised by the Council under Article 218(7) TFEU83 must be expanded to include Article 218(9). Furthermore, the EP should become entitled to issue recommendations that the Commission must take into account in drafting a Council decision and, if not, explain the reasons. A further step towards increased scrutiny would be the formal EP involvement in the Council decision-making under Article 218(7) and (9). If the decisions relate to rule-making requiring – in their implementation – a change to EU legislation, the Council decision must be subject to consent of the EP. Adding an EP consent requirement to the Council decision-making would resolve the imbalance between the EP’s strong role in legislating and



82 As

is provided for in the Cotonou Agreement. Annex III, para 9 of the Framework Agreement.

83 See

The European Parliament’s Role in the Operation of Trade Agreements  225 treaty-making compared to its negligible role in the simplified procedures that have not been amended by Lisbon to reflect the EP’s strengthened role in legislating and treaty-making.84 Implementing these proposals would not require the reform of EU primary law. The EP’s rights could be enshrined in the Council decision concluding the FTA. There, a legal framework for the EP’s involvement in the simplified procedures could be established. Alternatively, a Framework Agreement between the Council and the EP or, preferably, a general regulatory framework adopted as a legislative act under Article 207(2) TFEU on the delegation of powers to treaty bodies could foresee an EP consent requirement for certain types of Council decisions under Article 218 (7) and (9). In addition to, and independently from, new mechanisms, the EP’s monitoring of the operation of FTAs should also intensively make use of the usual monitoring instruments with regard to treaty body decision-making, like oral questions, meetings with Commission and Council staff, and expert and stakeholder hearings, but also meeting with representatives of the other FTA party. The EP also should make its consent to FTAs subject to a commitment by the Commission and the Council to also annually report on the implementation of the FTAs with regard to treaty body decision-making activities, which would add to the overall transparency and quality of information.

VI. Conclusion As EU trade policy expands beyond border issues, EU external trade policy becomes another internal policy. Consequently, its democratic legitimacy needs to be strengthened. The role of the EP has to keep pace with the topical expansion of trade policy and its interference with formerly mainly domestic regulatory policies. From this perspective, the expansion and extension of the autonomous decision-making powers of the treaty bodies must be viewed critically. The resulting upgrading of executive powers in rulemaking and treaty amendments urgently needs to be balanced by extended supervisory mechanisms in favour of the EP in the operation phase of trade agreements, as has been proposed here.

84 Accord Alemanno, ‘The Regulatory Cooperation Chapter of the Transatlantic Trade and Investment Partnership: Institutional Structures and Democratic Consequences’ (2015) 18 Journal of International Economic Law 625, 636 ff.

226

13 Representative Democracy in Financial Crisis Governance New Challenges in the EU Multi-level System CLAUDIA WIESNER*

I. Introduction This chapter discusses the impact of financial crisis governance on established standards of representative democracy and especially legislative–executive relations in the EU multilevel system: representative democracies are (or should be) marked by a balance of powers between legislative, judicative and executive branches which mutually control each other. Legislatives are elected by the sovereign, executives are put into office and controlled by the legislative, and judiciary control both. In nation-states, these three are situated on the same level, i.e., the national polities. The EU multi-level system adds, first, the polity level of the EU with its institutions. In addition, there is a vertical interplay between the different levels (nation-states and the EU). An assessment of representative democracy in financial crisis governance accordingly needs to take into account the whole multi-level system, ie, the EU, its interrelations with the now 27 Member States, and the national democracies. There is no doubt that the recent global financial crisis has brought about numerous challenges for representative democracies on all these levels:1 some authors strongly warned of increasing legitimacy deficits,2 an intensification of technocracy,3 a more or less permanent state of emergency4 or even an upcoming ‘authoritarian liberalism’ in the EU.5 * This research was partly carried out during a Visiting Fellowship at the Minde de Gunzburg Centre, Harvard University, in the spring of 2019. The research and the visit were funded by a grant from the Fritz-Thyssen Foundation: ‘EU Multilevel Democracy in Crisis Mode’. 1 See, eg, B Crum, ‘Saving the Euro at the Cost of Democracy?’ (2013) 51(4) Journal of Common Market Studies 614; B Laffan, ‘Europe’s Union in Crisis: Tested and Contested’ (2016) 39(5) West European Politics 915, dx.doi.org/ 10.1080/01402382.2016.1186387; R Bellamy and A Weale, ‘Political Legitimacy and European Monetary Union: Contracts, Constitutionalism and the Normative Logic of Two-Level Games’ (2015) 22(2) Journal of European Public Policy 257. 2 G Majone, ‘From Regulatory State to a Democratic Default’ (2014) 52(6) Journal of Common Market Studies 1216. 3 I Sanchez-Cuenca, ‘From a Deficit of Democracy to a Technocratic Order: The Postcrisis Debate on Europe’ (2017) 20 Annual Review of Political Science 351. 4 J White, ‘Emergency Europe’ (2015) 63(2) Political Studies 300. 5 AJ Menéndez, ‘Hermann Heller NOW’ (2015) 21(3) European Law Journal 285, dx.doi.org/10.1111/eulj.12135.

228  Claudia Wiesner But despite a vast body of literature on the matter, more detailed and comparative empirical accounts of the changes that have been brought about are rare so far. The existing ones indicate that depending on which level is concerned (the EU or Member States), which kind of measure and instrument (the European Stability Mechanism (ESM), the six-pack and twopack of legislation) and which status the respective state has (debtor or creditor), the effects of crisis governance on representative democracy may vary greatly.6 Accordingly, this chapter aims at, first, differentiating and second, assessing the impact of financial crisis governance on representative democracy on all levels of the EU system and in the different measures. A first decisive difference is the one between measures that fall under the regime of the Lisbon Treaty and have been voted upon with the participation of the European Parliament (EP), such as the six-pack and two-pack measures (see section III), and those that are excluded from the treaty framework, such as the ESM and its predecessors, which are based on intergovernmental treaties (see section IV). Second, the picture becomes even more complex when national parliaments are taken into account. Whereas it is evident that the implementation of financial aid legislation has led to attempts to strengthen executive dominance in many cases – for instance, by using fast-track procedures in decision-making7 – there are also examples indicating that national parliaments have gained new powers.8 Against this backdrop, I aim at depicting, comparing and assessing the power shifts in crisis governance and their effects on legislative–executive relations and the quality of democracy in the EU, comparing different measures, levels, states and actors. I end with a discussion of possible solutions to the new dilemmas.

II.  The Normative and Theoretical Bases of the Argument My argument is based on the position that (a) the EU is to be seen as a political system,9 that (b) has continuously been and still can be further democratised and (c) relates to a multilevel system, including the Member States and their democracies. From that standpoint, there are a number of critical points to be mentioned regarding democracy on the EU level itself, as is discussed in the academic debate on the EU’s ‘democratic deficit’.10

6 See, eg, A Maatsch, Parliaments and the Economic Governance of the European Union: Talking Shops or Deliberative Bodies? (Abingdon, Routledge, 2017); D Jančić, ‘National Parliaments and EU Fiscal Integration’ (2016) 22(2) European Law Journal 225, dx.doi.org/10.1111/eulj.12172; T Fischer, ‘Viele Gesichter, ein Demokratiedefizit?: Paper zum Workshop “Demokratische Steuerung der EU-Krisen – ein Ding der (Un)möglichkeit?!”’ (Darmstadt 14 April 2016). 7 See Maatsch (n 6) and below. 8 See Jančić (n 6) and below. 9 See, eg, I Tömmel, The European Union: What it is and How it Works (Basingstoke, Palgrave Macmillan, 2014); S Hix and B Høyland, ‘Empowerment of the European Parliament’ (2013) 16(1) Annual Review of Political Science 171. 10 For overviews, see A Føllesdal and S Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravscik’ (2006) 44(3) Journal of Common Market Studies 533; S Hix, What’s Wrong with the European Union and How to Fix it (Cambridge, Polity, 2008).

Representative Democracy in Financial Crisis Governance  229

A.  Representative Democracies, the Balance of Powers and the EU’s Democratic Deficits The ‘democratic deficit’ debate illustrates key challenges to representative democracy in the EU’s multi-level setting.11 However, this discussion relates to the institutional setting formed by the treaties from Maastricht to Lisbon, and it is precisely this setting that is changed in the crisis. First, for a long time, EU policies have not merely been regulative, as used to be the case in the early days of the integration process; today, they have redistributive effects.12 This fact raises the necessity for a solid democratic legitimation of the EU and its policies, in both input and output terms. Second, some legitimation chains are long and rather lacking in transparency. Council members are legitimised via national elections and national parliaments. Commission members are appointed by the Member States’ governments, even if the EP nowadays possesses the right to vote following the Commission’s approval and also to influence the Commission’s setting to a certain degree.13 Third, input legitimacy is weaker at the EU level than in Member States’ democracies,14 but these continually lost competencies to the EU level. European integration thus led to a net loss of input legitimacy in the multi-level system.15 Fourth, EU institutions increased their competencies over the last few decades without adding a representative-democratic legislative component that is equal to those in the nation-states. This led to a power shift from legislatives to executives and judiciary institutions across the whole multi-level system.16 These problems have been severely increased by the governance of the financial crisis, as will be argued below.

B.  A Normative Benchmark I will assess the institutional setting of financial crisis governance according to a crucial benchmark for the quality of democracy in parliamentary democracies: the budgetary process. This benchmark is based on the classical balance of powers and the proceedings in most national budgetary procedures in parliamentary and semi-presidential systems: the government proposes the budget, the parliament debates it and can amend it, and then votes on it. The parliament has been directly elected and hence legitimised by the voters. Finally, the government is accountable to the parliament. This leads to two kinds of benchmarks for an assessment: first, the question is whether in the financial crisis, these standards are kept internally in the states that will be analysed,

11 On the following, see in detail C Wiesner, Inventing the EU as a Democratic Polity: Concepts, Actors and Controversies (London, Palgrave Macmillan, 2019). 12 Føllesdal and Hix (n 10) 551; D Beetham and C Lord, ‘Legitimacy and the European Union’ in A Weale and M Nentwich (eds), Political Theory and the European Union (London, Routledge, 1998) 17–19. 13 See Wiesner (n 11). 14 Beetham and Lord (n 12) 17–19. 15 J Habermas, ‘Braucht Europa eine Verfassung? Eine Bemerkung zu Dieter Grimm’ in Die Einbeziehung des Anderen (Frnakfurt, Suhrkamp, 1999) 186–87; Beetham and Lord (n 12) 17–19. 16 Føllesdal and Hix (n 10) 534–37.

230  Claudia Wiesner that is, according to the principles that are fixed in the respective constitutions; and, second, the question is whether from an external point of view – that is, a position outside of the respective political system, judging the quality of the democratic procedures in general – we can judge the respective criterion as given. Table 13.1  Standard budget procedure Budget procedure The government proposes the budget

Internal criteria Does the government inform and include parliament proactively or restrictively?

External criteria Does the government propose the budget or is another actor responsible?

Is there constitutional Court control? Parliament debates, amends and votes upon the budget

Is parliament included as according to constitutional standards? Is there constitutional Court control?

The sovereign elects parliament and hence legitimises the budget decision

Is this still in place, unaffected by crisis governance?​

Does parliament have the powers to negotiate, deliberate and eventually change the budget? Is this still in place, unaffected by crisis governance?​

III.  Budget Supervision: Six-Pack and Two-Pack While creating a common currency and monetary politics, the EU Treaties do not confer the powers upon EU institutions to impose fiscal and economic policies on Member States, except for avoiding excessive deficit. Articles 120–26 as well as Article 136 of the Treaty on Functioning of the European Union (TFEU), also termed the ‘Stability and Growth Pact’ (SGP), set legal limits to government deficit (3 per cent of GDP) and debt (60 per cent of GDP). On this basis, after the first measures in reaction to the financial crisis had set up financial assistance for Greece (see section IV below), the European Commission initiated new fiscal and economic supervision mechanisms for the Member States.17 They were voted upon by the Council of the European Union and the Parliament in 2011 and 2013 in the so-called ‘six-pack’ and ‘two-pack’ of legislation. In addition, the intergovernmental Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG) requires a balanced budget and formally binds 22 out of the 25 contracting states: the 19 euro area Member States plus Bulgaria, Denmark and Romania.18

17 Consolidated Version of the Treaty on European Union 2016 (European Union); European Commission, ‘Legal Basis of the Stability and Growth Pact’ (2016), ec.europa.eu/info/business-economy-euro/economic-and-fiscalpolicy-coordination/eu-economic-governance-monitoring-prevention-correction/stability-and-growth-pact/ legal-basis-stability-and-growth-pact_en. 18 European Commission, ‘The Fiscal Compact – Taking Stock’ (2017), https://ec.europa.eu/info/publications/ fiscal-compact-taking-stock_en.

Representative Democracy in Financial Crisis Governance  231

A.  The Six-Pack and Two-Pack Legislative Measures The six-pack and two-pack mostly include regulations,19 ie, directly applicable and legally binding acts in the Member States concerned. The six-pack also includes one directive which requires Member States to adopt national laws of transposition to achieve the goals fixed in the directive. In the following, I will briefly present the contents of the different laws in the six-pack. Regulation 1175/201120 brings the surveillance of fiscal and economic policies under the European Semester. In this framework, concrete policy recommendations for a country’s budgetary policy are issued and coupled with reporting timelines and the duty to participate in a constant exchange on budgetary and fiscal policy. The procedures are as follows: the Commission undertakes a detailed analysis of each country’s plans for budget, macroeconomic and structural reforms. It publishes the Annual Growth Survey (AGS), an Alert Mechanism Reports (AMR) for the EU, and the recommendations for the euro area. It also evaluates the extent to which previous recommendations have been implemented. On this basis, it issues country-specific recommendations (CSRs) for the next 12–18 months. The Commission proposal for recommendations is then endorsed and formally adopted by the Council. The national governments need to adapt their budget and policies in response.21 Regulation 1177/2011 amending Regulation 1467/9722 and Regulation 1173/201123 concerns the Excessive Deficit Procedure (EDP). If a Member State’s deficit or debt exceeds the defined limits, the Commission prepares a report evaluating whether or not to launch an EDP, sends a notice to the state in question and informs the Council. Following the Commission’s proposal, the Council decides whether the deficit is excessive, eventually issues recommendations to the state and fixes a maximum time limit for it to take effective action (three or six months). If a state does not implement the recommendations, the Council may decide to give it formal notice first, and later on it may decide to impose fines that gradually increase. Decisions on most sanctions under the EDP are taken by reverse qualified majority in the Council. Hence a fine is deemed to be adopted unless the Council decides by qualified majority to reject it.24 Directive 2011/85/EU25 sets minimum requirements for budgetary frameworks, ie, the set of arrangements, procedures, rules and institutions that underlie the conduct of 19 European Commission, ‘The EU’s Economic Governance Explained’ (2019), ec.europa.eu/info/ business-economy-euro/economic-and-fiscal-policy-coordination/eu-economic-governance-monitoringprevention-correction/european-semester/framework/eus-economic-governance-explained_en. 20 Regulation (EU) No 1175/2011 of the European Parliament and of the Council of 16 November 2011 amending Council Regulation (EC) No 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies 2011 (European Council and European Parliament). 21 European Commission, ‘Fact Sheet. European Semester: The Autumn Package Explained’ (2018), europa.eu/ rapid/press-release_MEMO-18-6463_en.htm. 22 Council Regulation (EU) No 1177/2011 of 8 November 2011 amending Regulation (EC) No 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure 2011. 23 Regulation (EU) No 1173/2011 of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area 2011 (European Council and European Parliament). 24 The corrective arm: the excessive deficit procedure 2019, Summary of Council Regulation (EC) No 1467/97 (EUR-LEX). 25 Council Directive 2011/85/EU of 8 November 2011 on requirements for budgetary frameworks of the Member States 2011.

232  Claudia Wiesner budgetary policies within the nation-states, in particular: (i) systems of budgetary accounting and statistical reporting; (ii) rules and procedures governing the preparation of forecasts for budgetary planning; (iii) country-specific numerical fiscal rules; (iv) medium-term budgetary frameworks; and (v) mechanisms that regulate fiscal relationships between public authorities across sub-sectors of general government. For each headline, the Directive specifies a number of essential standards.26 Regulation 1176/201127 lays out the Macroeconomic Imbalance Surveillance Procedure (MIP) and applies to all EU Member States. Coordination of economic policies is achieved through Council recommendations, which are neither binding nor associated with sanctions. The MIP’s thresholds are not meant as legal limits, but they should help trigger an in-depth review.28 Regulation 1174/201129 is valid only for the euro area Member States. It enables sanctions and procedures for an enforcement of ‘corrective action plans’ that aim at satisfying Council recommendations. The Commission and the European Council control and eventually sanction these elements. The two-pack provisions, Regulation (EU) No 472/201330 and Regulation (EU) 473/2013,31 only apply to euro area Member States. They set common timelines for national budgets and common budgetary rules and tighten the supervision procedures of the European Semester, especially for states experiencing (or threatened with) serious difficulties with financial stability, receiving financial assistance or emerging from adjustment programmes.

B.  The Legitimation and Effects of Six-Pack and Two-Pack The six-pack and the two-pack of legislation are based on the EP’s input legitimacy, as the EP was involved in most of the new norms as according to the ordinary legislative procedure.32 While the EP was involved in the design of the new fiscal governance measures, their execution at first was pursued and implemented without its contribution.33 However, in 2015, the EP claimed a restructuring of the European Semester, without changing the

26 European Commission, ‘European Economy Occasional Papers 128: February 2013 Interim Progress Report on the Implementation of Council Directive 2011/85/EU on Requirements for Budgetary Frameworks of the Member States’ (2013), ec.europa.eu/economy_finance/publications/occasional_paper/2013/pdf/ocp128_en.pdf. 27 Regulation (EU) No 1176/2011 of the European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances 2011 (European Council and European Parliament). 28 European Parliament, ‘Understanding the Macroeconomic Imbalance Procedure: Origin, Rationale and Aims’ (2017), www.europarl.europa.eu/RegData/etudes/BRIE/2017/599433/EPRS_BRI(2017)599433_EN.pdf. 29 Regulation (EU) No 1174/2011 of the European Parliament and of the Council of 16 November 2011 on enforcement measures to correct excessive macroeconomic imbalances in the euro area 2011 (European Council and European Parliament). 30 Regulation (EU) No 472/2013 of the European Parliament and of the Council of 21 May 2013 on the strengthening of economic and budgetary surveillance of Member States in the euro area experiencing or threatened with serious difficulties with respect to their financial stability 2013 (European Council and European Parliament). 31 Regulation (EU) No 473/2013 of the European Parliament and of the Council of 21 May 2013 on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area 2013 (European Council and European Parliament). 32 See C Fasone, ‘European Economic Governance and Parliamentary Representation: What Place for the European Parliament?’ (2014) 20(2) European Law Journal 164, dx.doi.org/10.1111/eulj.12069. 33 European Parliament, ‘Evaluating EU Economic Governance: Briefing’ (2015), www.europarl.europa.eu/ RegData/etudes/BRIE/2015/536374/EPRS_BRI%282015%29536374_REV1_EN.pdf.

Representative Democracy in Financial Crisis Governance  233 legal base. The procedure was then reformed and today allows for the greater involvement of the EP and national legislatures, as well as social partners and stakeholders at all levels. The Commission output has been simplified and there are fewer CSRs per Member State.34 What have been the effects of the six-pack and two-pack laws? They resulted in a mixture of harder and softer governing effects. The six-pack, in sum, brought a close supervision of fiscal and economic policies under the European Semester and the MIP for all EU Member States and in particular for the euro area; introduced an expenditure benchmark; allowed the excessive deficit procedure to be opened on the sole basis of the debt criterion (60 per cent of GDP); introduced a macro-economic imbalance procedure relying on an early warning system and enforcement regime; and imposed graduated financial sanctions.35 This means that national fiscal policy and budgetary decisions in the EU Member States are influenced and supervised by the new framework. This is a far-reaching competence for the EU. As the EP judges, ‘two-pack’ and ‘six-pack’ have gone to the limits of EU competence in the field of fiscal and economic policy.36 But only a few of the new instruments are legally binding and/or related to sanctions. Reports and recommendations as such are both non-binding acts – in other words, the Eurogroup and the Commission mean to achieve their ends without imposing a mandatory legal framework.37 Accordingly, despite the intense rhythm of supervision, the EP reported in 2014 that only 10 per cent of the recommendations had been implemented, followed by 45 per cent under the 2016 Semester cycle and 50 per cent of the recommendations in the 2017 cycle.38 In contradiction, the Brussels think tank Bruegel found that implementation rates decreased after 2014.39 So far, sanctions have not been applied to a Member State under the EDP. In 2016, Portugal and Spain were warned by the Economic and Financial Affairs Council (ECOFIN) that they had not taken effective action in response to its recommendations and that this would potentially trigger sanctions.40 But Greek commissioner Dimitris Avramopoulos (Migration) publicly warned that ‘the Portuguese and the Spaniards have already made many sacrifices, and they would not understand such a decision’. According to an El Pais background story, it was German Finance Minister Wolfgang Schäuble who changed his

34 European Parliament, ‘Legislative Train Schedule Deeper and Fairer Economic and Monetary Union’ (2019), www.europarl.europa.eu/legislative-train/theme-deeper-and-fairer-economic-and-monetary-union/filefirst-targeted-and-stability-oriented-revision-of-the-six-and-two-pack. 35 European Parliament, ‘Legislative Train Schedule: Deeper and Fairer Economic and Monetary Union’ (2019), www.europarl.europa.eu/legislative-train/theme-deeper-and-fairer-economic-and-monetary-union/file-firsttargeted-and-stability-oriented-revision-of-the-six-and-two-pack. 36 European Parliament, ‘Evaluating EU Economic Governance: Briefing’ (2015), www.europarl.europa.eu/ RegData/etudes/BRIE/2015/536374/EPRS_BRI per cent282015 per cent29536374_REV1_EN.pdf. 37 European Parliament, ‘The Legal Nature of Country-Specific Recommendations’ (2019), www.europarl. europa.eu/RegData/etudes/ATAG/2014/528767/IPOL_ATA(2014)528767_EN.pdf. 38 European Parliament, ‘At a Glance Implementation of the 2017 Country Specific Recommendations’ (2017), www.europarl.europa.eu/RegData/etudes/ATAG/2018/614500/IPOL_ATA(2018)614500_EN.pdf. 39 K Efstathiou and GB Wolff, ‘Is the European Semester Effective and Useful?’ (2018), bruegel.org/reader/ European_Semester#. 40 Reuters, ‘EU Commission Begins Deficit Sanction Procedure for Spain, Portugal’, 6 July 2016, www.reuters. com/article/us-eu-deficit-spain-portugal-idUSKCN0ZN1J7.

234  Claudia Wiesner mind and ultimately avoided the sanctions by actively engaging, calling and convincing European People’s Party (EPP) Commissioners and ECOFIN members. Schäuble is said to have argued that it was enough, even for Germany, that Spain and Portugal would stay under supervision.41 Therefore, Spain and Portugal were spared fines under the EDP. In a similar way, in 2003, both France and Germany had failed to respect the limits prescribed by the Pact without being sanctioned.42

IV.  Financial Aid The second strand of financial crisis governance is fixed by intergovernmental treaties concluded between the euro area Member States, which created institutions such as the ESM and agents such as the Troika. As a consequence, an intergovernmental parallel structure to the EU’s institutions has been developing: the actors figuring in the ESM Treaty are the same as those in the EU Treaties – the Commission, Council members, the European Central Bank (ECB) and the Court of Justice of the European Union (CJEU).43 There are, however, two crucial differences: non-Euro area Member States are formally excluded and so is the European Parliament. Far-reaching competencies have been transferred to the Eurogroup and the Troika.

A.  Creating an Intergovernmental Parallel Structure In order to understand and analyse the setting of financial aid, it is crucial to understand the role of the Euro area Member States and the Eurogroup, as both create an institutional differentiation in the EU institutions. The ministers of finance of the Euro area Member States, according to Protocol No 14 of the Lisbon Treaty, form the Eurogroup, whose meetings are informal.44 This leads to a decisive difference in transparency: while Council meetings are public when the Council is acting in its legislative function, this is not the case for the Eurogroup. When financial aid for Greece began in May 2010, the basis was an intergovernmental declaration of the heads of state and government of the Euro area Member States. Shortly afterwards, the European Financial Stabilisation Mechanism (EFSM) and the European Financial Stabilisation Facility (EFSF) were created.45 The EFSF is the predecessor of

41 C Pérez, ‘The Inside Story of How Spain Avoided EU Sanctions’ (2016), elpais.com/elpais/2016/07/28/inenglish/1469704242_546729.html. 42 D Fromage, ‘Creation and Reform of Independent Fiscal Institutions in EU Member States: Incomplete and Insufficient Work in Progress?’ in B de Witte, C Kilpatrick and T Beukers (eds), Constitutional Change through Euro-crisis Law (Cambridge, Cambridge University Press, 2017). 43 European Council, ‘Treaty Establishing the European Stability Mechanism’ (2012), http://www.efsf.europa.eu/ attachments/esm_treaty_en.pdf. 44 Consolidated Version of the Treaty on European Union (n 17). 45 PC Müller-Graff, ‘Euro-Budgethilfenpolitik im rechtlichen Neuland’ [2011] Integration 289.

Representative Democracy in Financial Crisis Governance  235 today’s ESM. This setting, then, mixed the EU’s institutions and Treaties with a newly created structure, adding the International Monetary Fund (IMF) as a new player outside the EU. The ESM is an intergovernmental financial institution (IFI) and is therefore subject to international law.46 It currently disposes of a total subscribed capital of €701 billion. Member States hold shares equal to their shares in the ECB.47 Their maximum risk is limited to the capital they invested. Moreover, a reserve fond consisting of benefits gained by the ESM (and eventually sanctions paid by the members subject to the SGP) allows for some additional capital, which reduced the ESM members’ risks.48 Despite its intergovernmental set-up, the ESM is closely linked to the EU’s institutions. First, it was founded on the occasion of a European Council meeting in December 2010,49 when a new third paragraph was added to Article 136 TFEU that made it possible to create such a mechanism. Moreover, the ESM Treaty50 explicitly relates to the EU (Article 2). Representants of two of the EU’s institutions can be invited to meetings to the ESM governor board: the Commissioner for economic and monetary affairs of the European Commission and the President of the ECB (Article 5(3)). The Court of Justice can be called upon in the event of conflict (Article 37). The governance of financial aid has in large part been concretely operated by the often cited ‘Troika’, consisting of representatives of the Commission, the EC and the IMF. Formally, the Troika is their agent and is charged with (a) negotiating the conditions of financial aid and (b) ensuring that these conditions are kept. The ministers of finance and economics of the Euro area Member States decide on financial aid and its conditions (Article 5, 5f) – after the Troika has negotiated these conditions and fixed them in a MoU that is signed by representants of the Commission in the name of the ESM (Article 13(3)). This means that the Troika not only is the agent that controls all conditions linked to financial assistance, but is also in charge of negotiating these terms and putting them down in a memorandum of understanding (MoU). The Troika, accordingly, has a high degree of independence and considerable hard power, while it shows a low degree of accountability and transparency. The ESM Treaty does not specify which competencies the Troika has over the Member States, their governments, and their parliaments, how those competences refer to the Troika’s principals, the ECB, the Commission and the IMF, and how they relate to the Eurogroup’s governments. It might be argued that such undefined competencies are an outcome of ‘incomplete contracting’ as part of a principal–agent relationship. Nevertheless, the structure is so opaque that it is difficult to see how the principals control the agent in the end.

46 Bundesfinanzministerium, ‘Fragen und Antworten zum Europäischen Stabilitätsmechanismus (ESM)’, 3 February 2015, www.bundesfinanzministerium.de/Content/DE/FAQ/2012-08-16-esm-faq.html. 47 See in detail ESM, ‘Shares and Capital per ESM Member’, www.esm.europa.eu/esm-governance#shares_ and_capital_per_esm_member. 48 Bundesfinanzministerium (n 44). 49 ESM, ‘European Stability Mechanism’ (2015), www.esm.europa.eu. 50 European Council (n 41).

236  Claudia Wiesner

B.  Assessing Democracy and the Balance of Powers in Debtor and Creditor States Financial aid to EU Member States – for now – ended following the conclusion of the Third Greek Stability Programme in August 2018.51 Nevertheless, for two reasons, the field of financial aid is particularly pertinent in the crisis governance setting. First, the ESM Treaty keeps the same provisions that have been described, so any state that would in future need financial assistance would be subject to the same conditions. Second, financial assistance entails the most immediate changes in power relations in the multi-level system. At the Member State level, parliamentary decision-making powers have been cut back in both debtor and creditor states, and, moreover, the horizontal balance of powers between the Member States has been damaged.52 This relates to two sets of problems. With financial aid governance not being subject to the Lisbon Treaty, the Lisbon rules for the involvement of national parliaments are not valid and the degree of involvement of national parliaments is solely determined by the respective national constitutions and balances of powers. Moreover, no parliamentary accountability mechanism is fixed in the ESM Treaty. To assess the impact of financial aid governance in the Member States, I will return to the benchmark outlined in section II above. On this basis, I will assess key decisions, ie, the three decisive steps in the political and legal processes of financial aid implementation. All of these required the involvement and approval of the national parliaments concerned: • Step 1: first decisions on financial aid and the EFSF (2010–11). • Step 2: Article 136(3) TFEU and the ESM Treaty (2012). • Step 3: decisions on financial aid for Greece, Spain, Portugal, Ireland and Cyprus (2010–15) – in this phase, debtor state parliaments also had to approve their respective MoU. The ways in which constitutional standards of parliamentary involvement and government functions have or have not been kept and that political processes have been going about can be traced via documents of the participating institutions and press articles. A project group at the European University Institute on this basis has been carrying out country reports53 which are the basis for the comparative overview in this chapter. In my assessment, I will concentrate on the one hand on the five debtor states – Greece, Spain, Portugal, Ireland and Cyprus – out of which only Spain has considerable economic weight in the ESM. On the other hand, I will look at the seven biggest creditor states, namely Germany, France, Italy, the Netherlands, Belgium, Austria and Finland. If we look at the three criteria outlined above in section II.B, we find the following picture for the seven creditor states regarding the internal benchmark, ie, the way in which the decisions on financial

51 European Commission, ‘Financial Assistance to Greece’, 5 June 2019, ec.europa.eu/info/business-economy-euro/ economic-and-fiscal-policy-coordination/eu-financial-assistance/which-eu-countries-have-received-assistance/ financial-assistance-greece_en. 52 See M Hartlapp and C Wiesner, ‘Gewaltenteilung und Demokratie im EU-Mehrebenensystem – neu, anders, oder weniger legitim?’ in M Hartlapp and C Wiesner (eds), Zeitschrift für Politikwissenschaft (ZPol), special issue (2016); A Benz, ‘Föderale Demokratie und das Problem der Gewaltenbalance’ in M Hartlapp and C Wiesner (eds), Zeitschrift für Politikwissenschaft (ZPol), special issue (2016). 53 European University Institute, Department of Law, ‘Constitutional Change through Euro Crisis Law’, eurocrisislaw.eui.eu.

Representative Democracy in Financial Crisis Governance  237 aid in the three steps explained are in accordance with the standards set up by the national constitutions. Table 13.2  Political processes in creditor states Government strategy

State Germany

Step 1) restrictive

Parliamentary consultation and participation Strong

after BVG judgments: proactive

Constitutional court/ constitutional council Parliament needs to be more extensively informed and included Financial aid is in conformity with the constitution

France

Restrictive

Weak

Comment

Italy

Step 1) restrictive

Step 1) weak

–

After step 2) proactive

After step 2) regular

The Netherlands

Proactive

Strong

Financial aid is in conformity with the constitution

Belgium

Restrictive

Weak

Financial aid is in conformity with the constitution

Austria

Restrictive

Regular

Financial aid is in conformity with the constitution

Finland

Proactive

Strong

Financial aid is in conformity with the constitution Parliament needs to be more extensively informed and included

Source: European University Institute, Department of Law,54 analysis and design C Wiesner.

As the overview shows, several governments followed a rather restrictive strategy in dealing with their parliaments, that is, they delivered information sparsely or only on short-hand notice, and they tried to obtain the necessary approval in fast-track procedures.55 In a number of cases, also in the creditor states, the government tried to alter legislative– executive power relations in their favour and to include parliament to a degree that is only just up to the constitutional standards or below. Three parliaments stand out for their strong participation in the approval procedures: the German, the Dutch and the Finnish parliaments. Now, what does the picture look like for the debtor states?

54 ibid. 55 See

also Maatsch (n 6).

238  Claudia Wiesner Table 13.3  Political processes in debtor states

State Greece

Government strategy Restrictive

Parliamentary consultation and participation Steps 1) and 2) Weak

Proactive (under Syriza) Cyprus

Restrictive

Step 3) MoU 2010: none 2012: weak 2015: regular

1) Weak

Restrictive

The government acts according to the constitution

Strong

Financial aid is in conformity with the constitution

None

–

Weak

Strong

ESM is in conformity with the constitution

Regular

Weak

–

2) Regular Portugal

Constitutional court/ constitutional council

1) Weak 2) Regular

Ireland

1) restrictive 2) proactive

Spain

1) and 2) proactive MoU: restrictive

Source: European University Institute, Department of Law,56 analysis and design by C Wiesner.

Table 13.3 indicates that there is slightly more restrictive treatment of parliaments by governments in the debtor states than in the creditor states. There are also two cases, Greece and Portugal, where parliament was bypassed in agreeing to a MoU.57 On the other hand, there are cases such as Cyprus and Ireland where parliamentary involvement in the decisionmaking procedure on the MoU was explicitly strong, ie, stronger than prescribed by the Constitution. Table 13.3 also indicates that the constitutional courts intervened slightly less often in the debtor states, and there are no cases where they decided in favour of a strengthening of parliamentary competencies. All this speaks in favour of a general tendency in crisis management to concentrate powers on the executives. But besides this general statement, it is difficult to determine the reasons behind the differences described. It is clear that neither the fact that a state is a debtor or a creditor nor its economic weight in the ESM provides an immediate explanation of the different patterns appearing in legislative–executive relations. France and Italy, the big ESM shareholders, showed restrictive government behaviour and weak parliamentary inclusion compared to their national constitutional standards, and the opposite is the case for the small ESM members Finland and the Netherlands. Taken together, Nordic parliaments score better than southern parliaments in this respect.58 The picture is equally blurred regarding the debtor states. The governmental strategy seems to vary in the different phases and thus depending on whether a general agreement such as the ESM needed to be voted upon, or a specific national MoU. As the Greek case 56 European University Institute, Department of Law (n 51). 57 See in detail below; and A Malkopoulou, ‘Eurozone Crisis and Parliamentary Democracy: The Greek Case’ in C Wiesner and M Schmidt-Gleim (eds), The Meanings of Europe (Abingdon, Routledge, 2014). 58 Maatsch (n 6).

Representative Democracy in Financial Crisis Governance  239 shows, in addition, government strategies seem to vary according to the party-political orientation of the governing party. Accordingly, in the following discussion, the details of two crucial cases – the biggest creditor state (Germany) and the most crucial debtor state (Greece) – will be studied in order to find more possible explanatory factors.

C.  Recalibrating the Balance of Powers in Debtor and Creditor States: Two Crucial Cases In creditor states, the crucial question is whether and to what extent parliaments have the right to co-decide on financial aid. Taking the German example, Article 59(2) of the Basic Law (Grundgesetz or GG) defines that intergovernmental treaties must be ratified in parliament. Nevertheless, the German government first tried to keep the Bundestag’s involvement limited. As a consequence, a number of MPs carried out constitutional complaints, and the resulting judgments of the German Constitutional Court (Bundesverfassungsgericht) underlined that the Bundestag had to be regularly, clearly and strongly involved.59 Furthermore, the Court judged that the ESM Treaty was to be regarded as a kind of EU treaty subject to Article 23 of the Basic Law that secures a considerable degree of influence in EU matters for the Bundesrat, ie, the second parliamentary chamber that represents the federal states.60 Moreover, the Bundestag obtained considerable co-decision rights in the areas of the ESM and financial aid. In September 2011, the Constitutional Court judged that financial assistance must be voted upon first in the budgetary committee of Parliament.61 Subsequently, in a form of anticipatory obedience, the ESM ratification law foresaw a strong parliamentary role, and both the budgetary committee and the plenary of the Bundestag had to give their approval.62 In sum, the Bundestag received considerable new competencies in terms of financial aid policies, but it earned these competencies via constitutional complaints and via Constitutional Court judgments. This means that the balance of powers in Germany worked quite well and the judiciary defended and even strengthened the legislative, which is in line with the Constitutional Court’s judgments in recent years. The Greek case is an example of the converse situation. The balance of powers shifted towards executive bodies and experts, but mainly to those outside Greece, ie, the Troika and the Eurogroup. The MoU and the related economic recovery programmes defined very 59 Bundesverfassungsgericht, ‘Pressemitteilung Nr. 14/2012 vom 28. Februar 2012’ (2012), www.bverfg.de/ pressemitteilungen/bvg12-014.html; Bundesverfassungsgericht, ‘Pressemitteilung Nr. 67/2012 vom 12. September 2012’ (2012), www.bverfg.de/pressemitteilungen/bvg12-067.html. 60 Bundesverfassungsgericht, ‘Pressemitteilung Nr. 42/2012 vom 19. Juni 2012’ (2012), www.bverfg.de/pressemitteilungen/bvg12-042.html. 61 Bundesverfassungsgericht, ‘Pressemitteilung Nr. 55/2011 vom 7. September 2011 Verfassungsbeschwerden gegen Maßnahmen zur Griechenland-Hilfe und zum Euro-Rettungsschirm erfolglos – Keine Verletzung der Haushaltsautonomie des Bundestages’ (2011), www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/ DE/2011/bvg11-055.html. 62 See in detail S Kneip, ‘Mehr (nationale) Demokratie wagen? Die Europarechtsprechung des Bundesverfassungsgerichts im Lichte des Demokratie- und Gewaltenkontrolldefizits im EU-Mehrebensystem’ in Hartlapp and Wiesner (n 50); A Wimmel, ‘Verhandeln im Schatten von Vetomacht: Der Einfluss der Opposition im Bundestag auf die Euro-Rettungspolitik’ in Hartlapp and Wiesner (n 50).

240  Claudia Wiesner detailed measures and spending cuts, naming percentages and also areas or programmes where the cuts needed to be made in the public sector, regarding pensions and in labour market policies.63 This meant that the budgetary competencies of the Greek Parliament were severely impeded, as they were reduced to an approval or decline of the MoU framework. The Greek Constitutional Court in several cases approved the measures. When consulted, the Greek Parliament in its majority approved the austerity programmes, but when the Greek Minister of Finance signed the first MoU in 2010, he did not consult Parliament beforehand, which represented a breach of the Greek Constitution. The next MoU in 2012 was discussed only as an emergency law, ie, as part of a short-track procedure.64

V.  The External Judgement As has been noted above, there is a second decisive perspective on the benchmark for judging the effects of financial aid governance on representative democracy in the Euro area Member States: the external one. The key questions are: do Member States under the austerity regime and their parliaments lose all power over their budgets, since they can only accept the Troika’s conditions or face bankruptcy, or can they define political priorities? Is the budgetary right of national parliaments only limited or is it suspended? In this respect, an external assessment leads to a much more critical view of the procedures that relate to the setting up and the granting of financial aid in the debtor states. The benchmark of the standard mode of the budgetary procedure that was sketched above is decisively missed and turned into a crisis mode – some scholars have also termed it the emergency mode65 – of governance that is outlined below. Table 13.4  Standard mode vs Crisis mode Standard mode

Crisis mode IMF and Commission: set conditions and approve MoU Eurogroup: set conditions and approve MoU

Creditor state governments Creditor state parliament

Troika negotiates and controls conditions Government proposes budget

Government negotiates and approves (or declines) MoU

Parliament decides budget

Parliament approves (or declines) MoU Parliament is bypassed (Greece and Portugal)

Citizens vote on Parliament

Citizens vote on Parliament – not on the IMF, Troika and Eurogroup

63 European Commission, ‘Memorandum of Understanding between the European Commission and the Hellenic Republic and the Bank of Greece’ [2015], ec.europa.eu/economy_finance/assistance_eu_ms/greek_loan_facility/ pdf/01_mou_20150811_en.pdf; European Commission, ‘Memorandum of Understanding’ (2012), ec.europa.eu/ economy_finance/eu_borrower/mou/2012-03-01-greece-mou_en.pdf. 64 Malkopoulou (n 55) (2014). 65 Maatsch (n 6); White (n 4).

Representative Democracy in Financial Crisis Governance  241 This table clearly indicates that the most decisive change in the debtor states is the fact that key standards of representative democracy are no longer followed and decision-making power is handed over from the bodies that have been directly legitimised by the sovereign (national parliaments and governments) to bodies that either are only indirectly legitimised (such as the Eurogroup), international non-majoritarian bodies (such as the IMF) or expert groups (such as the Troika). However, budgetary rights are for good reason understood as part of the crown jewels of a parliament: a budget symbolically and materially expresses the will of the parliamentary majority by defining the policies to be carried out in a country. Even if governments propose a budget, parliaments always have a final say on them in the standard mode of representative democracy. The decisive difference relates to the powers that parliament possesses. A parliament that in the end does not have the power to decide on details and between true alternatives regarding the budget has lost the core of its role as a parliament. Decisions are then not only de-politicised, but are also void of the substance of parliamentarism. In such cases, parliament takes on a referendum role (voting simply yes or no) rather than the parliamentary function of deliberation and vote. This also reduces the role and weight of the input legitimation once given by the sovereign in domestic elections: input legitimation via elections legitimised national parliaments and governments, whose decision-making powers have been cut down in substance. Last but not least, in terms of financial aid governance, creditor state parliaments co-decided on the conditions for budgetary aid and thus encroached upon the powers of debtor state parliaments. Once again, the cases of Germany and Greece underline this problem best. When the German Bundestag decided on supporting the German share for financial aid for Greece, it did so based on the conditions of the MoU. Thus, by means of deciding upon the conditions of austerity for Greece, the Bundestag obtained a co-decision right over the details of the Greek budget. Now it seems inevitable that a creditor, especially one as big and powerful as the Federal Republic of Germany, in a Weberian sense exerts power over a debtor. But the Bundestag – like all other creditor state parliaments involved – was able to directly intervene in the Greek budget decisions and hence in matters relating to the Greek Parliament and the Greek government, and this created a link between Bundestag decisions and budgetary policies in Greece. Power imbalances between creditor and debtor states and the governance structures in financial aid thus led to a mixing-up of the competencies of national parliaments. This entails decisive shifts in the horizontal balance of powers between the Member States.

VI.  Concluding Discussion The discussion in this chapter has raised a number of problems that financial crisis governance created for representative democracies and balances of powers in the EU’s multi-level system. First, crisis governance institutions all entailed a power shift from legislatives to executives and experts. Second, the intergovernmental institutions bypassed the progression to supranational representative democracy obtained in the EU over the last few decades and take a short-cut back into intergovernmentalism. Third, it is a decisive legitimisation problem to have shifted decisive parts of the decision-making competencies outside the range of competence of both the EU and the national legislatives. Fourth, the financial aid

242  Claudia Wiesner part of crisis governance severely impedes national representative democracies and their balance of powers between legislatives and executives. However, the preceding analysis has shown that the diagnosis differs according to the different parts of the crisis governance setting. The crisis brought forward three main types of institutions that each have a different impact on democracy in the multi-level system. The first type – represented by the six-pack and two-pack legislation – is based on supranational norms, executing medium to soft power. The second type is based on intergovernmental treaties which entail the execution of hard power. The third type are expert bodies that exert hard power. All three types lead to a shift of competencies (a) from legislatives to executives and (b) from legislatives and executives to experts. Decisions are de-politicised and taken out of the realm of public and parliamentary politics, albeit in different patterns. The processes of budgetary supervision according to the six-pack and the two-pack are highly bureaucratised and to a high degree delegated to experts. Still, EU and national executives retain their influence in them because they implement and control the processes, while the competencies of both EU and national legislatives are reduced compared to the regular budget decision proceedings. The intergovernmental institutions also favour executive dominance because national executives are the main decision-makers, which means that we see a renationalisation of EU decision-making power. However – and it is not easy to explain why states thus renounce decision-making powers in this field – the national governments in financial aid governance delegated considerable hard powers to the Troika, an expert body with a lack of transparency. When it comes to comparing the effects on representative democracies and the balance of powers between legislatives and executives, the conclusion on the six-pack and the two-pack is relatively mild. These measures may potentially have a considerable influence on national fiscal competencies, as they aim at influencing national budgetary decisions. However, rules do not set clear limits to the budgetary competencies of national parliaments, as is the case for the MoU. So far, there have been no sanctions, and recommendations were often not even followed. The six-pack and the two-pack also have a relatively high input legitimacy, since they were voted for by the EP. Accountability, on the other hand, is reduced compared to the standard budgetary procedure depicted in Table 13.1, as parliaments at both the EU and national levels are only marginally included in the execution of procedures. The ESM is an intergovernmental organisation legitimised in the classical way via a treaty that has been ratified by the participating Member States and their parliaments. The ESM’s main impact on democracy in the EU multi-level system thus relates to the fact that it helps to create a parallel structure to the Lisbon system and to bypass the EP. In the ESM, we also find a strong role played by experts and a low level of accountability. Unsurprisingly, after what has been discussed above financial aid governance and the role of the Troika emerge are the cases that claim for the most severe judgement. The conditions attached to financial aid have a massive impact on national democracies and the powers of parliaments, and the alternatives offered are even less attractive as the consequences in the event of non-compliance are much more serious than in the fields of six-pack and two-pack laws states have the choice either to accept the conditions or to face state ­bankruptcy. While the Troika in all this has decisive hard power, its legitimation should be regarded as very weak along with its accountability. There is not even a clear legal basis for the Troika’s actions. The Troika also demonstrates the highest level of influence of experts on its actions.

Representative Democracy in Financial Crisis Governance  243 As has been said above, currently no EU Member State is subject to the rules of financial aid governance. This also means that – for now – the crisis mode depicted in Table 13.4 is no longer applicable. However, any new financial aid programmes would again relate to the principles outlined above, so the criticism is by no means superfluous. Thus, it has to be concluded that it is especially hard power and hard influence – under the intergovernmental ESM Treaty and in financial aid governance – that has been shifted to executives and experts in the financial crisis. The modes equipped with softer powers are more supranationally organised (the six-pack and two-pack laws) and power shifts from legislatives to executives and experts have been much less dramatic. These areas also have the highest degrees of input legitimacy and accountability. Besides this general statement, it has to be underlined that crisis governance and its power shares are in a state of flux. As noted above, the crisis mode currently is no longer applied. The EP, which does not possess any formal powers in the realm of the ESM and financial aid, has nevertheless kept its symbolic role of a parliament in terms of holding the executive to account, for instance, when it repeatedly held hearings on crisis measures.66 All in all, the discussion has underlined that the existing structures of governance of financial aid harm representative democracy at several levels of the multi-level system. These problematic effects are complemented by apparent deficits of effective governance. The opaqueness of the structures that has been outlined above favours conflicts, as stated in the ‘Five Presidents’ Report’ issued in 2015 by the Presidents of the European Commission, the European Council, the Eurogroup, the EP and the ECB.67 Is there a chance that these problems will be dealt with? This question touches upon a question of principle, ie, how policy areas are to be treated that are not ruled by the EU and the EU treaties but still intervene (a) in the EU’s policies and (b) in the Member States and their representative systems. In brief, there are two possible ways to approach this dilemma:68 (1) There is a defensive or a narrow solution. In this solution, the EU continues to rule only part of the policies that are carried out in the multi-level system and the Member States, and hence only part of those policies is ruled according to the EU Treaties and the checks and balances established by them. The defensive component then would consist in a safeguarding and protection mechanism for national representative systems, eg, by making clear that the Troika and the Eurogroup can only fix the amounts to be saved in budgets rather than policy directions. (2) There is an offensive or broad solution that would consist in broadening the policy areas in the EU rules to include all (or almost all) of the policies that are currently handled by democratic nation-states. This system of full integration would put an end to differentiated integration and would submit all policy areas to one mode of legitimation.

66 C Wiesner, ‘The Micropolitics and Parliamentary Powers: European Parliament Strategies for Expanding its Influence in the EU Institutional System’ (2018) 40(4) Journal of European Integration 375. 67 JC Juncker et al, ‘Die Wirtschafts- und Währungsunion Europeas vollenden’ (2015), ec.europa.eu/priorities/ sites/beta-political/files/5-presidents-report_de_0.pdf. 68 For detailed discussions, see C Wiesner, ‘Capitalism, Democracy, and the European Union’ (2016) 10(3-4) Z Vgl Polit Wiss 219; C Wiesner, ‘Möglichkeiten und Grenzen repräsentativer Demokratie in der EU-Finanzhilfenpolitik’ [2017] Integration 33; Wiesner (n 11).

244  Claudia Wiesner Among the EU institutions, it is the European Commission that has been arguing most fervently for the democratisation and better legitimisation of the EU’s fiscal governance structures – in the Council, French President Emmanuel Macron has been pushing for this as well. Their proposals aim at solutions that strike a middle ground between these alternatives. In December 2017, the Commission presented a roadmap69 that proposed: (a) to transform the ESM into a European Monetary Fund under the EU Treaties; (b) to integrate the TSCG into the EU Treaties; and (c) to create a European Ministry of Economics and Finance. These proposals aim at ending the parallel structure described above and hence also the worst democratic deficits. As of December 2020, these proposals have not advanced. The Eurogroup debated them in December 2018, but did not support shifting the ESM into EU law.70 Even more surprisingly, in March 2019, the EP argued in favour of retaining the intergovernmental structure of the ESM.71 Whatever the reasons for this, this means that decisive democratic deficits will continue to exist.

69 European Commission, ‘Deepening Europe’s Economic and Monetary Union’, 12 June 2017, https://ec.europa. eu/commission/news/deepening-europes-economic-and-monetary-union-2017-dec-06_en. 70 Euro Group, ‘Eurogroup Report to Leaders on EMU Deepening’ (2018), https://www.consilium.europa.eu/en/ press/press-releases/2018/12/04/eurogroup-report-to-leaders-on-emu-deepening. 71 European Parliament, ‘Establishment of a European Monetary Fund (EMF): Briefing’ (2019), http://www. europarl.europa.eu/RegData/etudes/BRIE/2019/635556/EPRS_BRI(2019)635556_EN.pdf.

14 Towards the ‘Normalisation’ of Security? Executive–Legislative Relations in an Expanding EU Security and Defence Policy ANNA HERRANZ-SURRALLÉS

I. Introduction In stark contrast with the tone of the 2003 European Security Strategy, which celebrated that ‘Europe has never been so prosperous, so secure nor so free’, the 2016 EU Global Strategy admitted that ‘we live in times of existential crisis, within and beyond the European Union. Our Union is under threat’.1 Certainly, the first decade following the Lisbon Treaty has coincided with the most serious deterioration of the security environment since the end of the Cold War. Several new conflicts have broken out in the European Union (EU)’s southern and eastern neighbourhoods, and the strained relations with Russia following the annexation of Crimea have marked the comeback of seemingly bygone territorial defence concerns. This context of instability around the EU has fuelled transnational security risks such as terrorism or hybrid threats, and the global scenario is no less challenging, amid growing signs that the liberal international order is falling apart.2 It is in this new strategic milieu that defence cooperation in Europe has experienced a relaunch after a decade of stagnation. This includes landmark institutional innovations such as the long-awaited activation in 2017 of the Permanent Structured Cooperation (PESCO) or the creation in 2019 of the new multi-billion European Defence Fund (EDF). According to Federica Mogherini, the former High Representative for the Union of Foreign Affairs and Security Policy (HR/VP), speaking at the end of 2017, ‘we have achieved more in this last year than we achieved in decades on security and defence in the European Union’.3

1 European Council, ‘A Secure Europe in a Better World – European Security Strategy’, 12 December 2003; European External Action Service, ‘Shared Vision, Common Action: A Stronger Europe – A Global Strategy for the European Union’s Foreign and Security Policy’, 28 June 2016. 2 Munich Security Conference, ‘Munich Security Report 2019 – The Great Puzzle: Who Will Pick up the Pieces?’ (2019), https://www.securityconference.de/en/publications/munich-security-report. 3 Federica Mogherini, speech at the ‘Building on Vision, Forward to Action: Delivering on EU security and Defence’ event, 171213_41, Brussels, 13 December 2017.

246  Anna Herranz-Surrallés These developments constitute a double-edged sword from the perspective of executive–legislative relations in the EU. On the one hand, security politics, particularly in the context of rising security threats, often leads to the reinforcement of the executive in the name of urgency and effectiveness.4 This concern is even more acute at the EU level, since the intergovernmental character of the Common Security and Defence Policy (CSDP) has placed parliaments at a structural disadvantage vis-a-vis the executives at both the national and European levels – the so-called ‘double democratic deficit’.5 Despite the institutional reform of the EU’s external action and formal abolition of the former ‘pillar structure’ by the Treaty of Lisbon, the intergovernmental character of CSDP remained unaffected.6 On the other hand, an emerging strand of research has argued that security politics is gradually ‘normalising’, in the sense that security issues are becoming as controversial and electorally salient as other domestic issues and hence subject to similar – if not higher – levels of parliamentary scrutiny.7 This also ties in with recent studies on European integration and global governance, which have raised the expectation that the greater politicisation of European and international affairs is bolstering political debate and parliamentary activism.8 Indeed, the Lisbon Treaty formally recognised that the European Parliament’s (EP) information and consultation rights in the Common Foreign and Security Policy (CFSP) also include the CSDP and entrusted National Parliaments (NPs) and the EP to set up an Interparliamentary Conference (IPC) on the CFSP/CSDP.9 Therefore, in line with the main question guiding this volume, this chapter seeks to determine whether the growing salience of European security and defence affairs post-Lisbon is contributing to a recalibration of executive–legislative relations. To examine this question, the chapter delves into theoretical debates about the relationship between security and democracy. While recent studies have revisited the

4 This includes both the long tradition in critical security studies (see the discussion in section II below) as well as more recent literature on the impact of crises (see introduction to this volume). 5 Hans Born and Heiner Hänggi, The ‘Double Democratic Deficit’: Parliamentary Accountability and the Use of Force under International Auspices (Aldershot, Ashgate, 2004) chs 10 and 11. 6 According to the Treaty of Lisbon, the CSDP is an integral part of the CFSP. However, the provisions on decision-making are more restrictive for the CSDP. For example, while in the CFSP there are some exceptions to the unanimity rule and the possibility of using constructive abstention, this is not the case for decisions relating to the CSDP, as established in arts 42(4) and 31(4) of the Treaty on European Union (TEU). The only exceptions relate to institutional questions: setting up the PESCO and the intergovernmental start-up fund, both provisions introduced by the Lisbon Treaty. In these two cases, decisions are to be adopted by qualified majority voting (QMV) (arts 46(2) and 41(3) of the TEU respectively). 7 Jonas Hagmann, Hendrik Hegemann and Andrew Neal, ‘The Politicisation of Security: Controversy, Mobilisation, Arena Shifting’, [2018] European Review of International Studies 5 (3) 4. 8 Sandra Kröger and Richard Bellamy, ‘Beyond a Constraining Dissensus: The Role of National Parliaments in Domesticating and Normalising the Politicization of European Integration’ (2016) 14(2) Comparative European Politics 131; Michael Zürn, ‘The Politicization of World Politics and its Effects: Eight Propositions’ (2014) 6(1) European Political Science Review 47. 9 The EP’s involvement in the CFSP/CSDP is defined in art 36 TEU. Interparliamentary cooperation in the specific field of the CFSP/CSDP is mentioned in art 10 of Protocol 1 to the Treaty of Lisbon; however, the NPs finally chose the more general art 9 of the same protocol, as art 10 would have implied that interparliamentary cooperation would fall under the umbrella of the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC). See Diane Fromage, ‘Standing Committees in Interparliamentary Cooperation in the Post-Lisbon Era: Towards the End of the European Affairs Committees Predominance?’ in Nicola Lupo and Cristina Fasone (eds), Interparliamentary Cooperation in the Composite European Constitution (Oxford, Hart Publishing, 2018) 123.

Towards the ‘Normalisation’ of Security?  247 security-democracy nexus in the context of national security policy, such a link has been less explored at the EU level. This chapter argues that European security policy faces additional challenges that speak against the above-mentioned ‘normalisation hypothesis’, namely the expectation that security policy is gradually resembling other policy domains, also when it comes to parliamentary involvement. More specifically, the claim advanced is that the varying configurations of these challenges over time, here defined as hybridity, cohesiveness and sovereignty challenges, can account for the ebbs and flows in executive–legislative relations in this domain. By examining the role of the EP since the mid-2000s, the chapter finds that the intensification of the above-mentioned challenges explains why the relaunch of the CSDP since 2015 has so far tended to amplify rather than reduce the executive–legislative imbalance. The argument unfolds in five sections. Section II reviews the debates on the security-democracy nexus and presents the analytical model suggested in this chapter. Sections III–V trace the evolution of executive–legislative relations in three periods relating to different stages of CSDP development: first steps (2003–08), stagnation (2009–14) and relaunch (2015–19). The final section concludes with a reflection on the practical and normative implications of the observed trends, as well as the prospects for parliamentary scrutiny of the renewed European security and defence policy following the 2019 European elections.

II.  Crisis, Security and Democracy Beyond the State The debate in security studies over the relationship between security and democracy is long and ongoing. On the one hand, there is a well-established tradition that considers security policy as detrimental to democracy.10 In a recent review of this debate, Jonathan Bright identified four common arguments leading to a ‘powerful expectation that parliaments and congresses should diminish levels of scrutiny when faced with security related legislation’: crises, strength, patriotism and ignorance.11 The first argument concerns the motivational effect of crises, given that situations perceived as an emergency will prompt hurried policy reactions and procedural short-cuts that make proper parliamentary scrutiny and political debate more difficult. The second and third arguments relate more to parliamentarians’ own choice and self-restraint. For example, politicians might strategically choose not to criticise their government’s security policies to avoid being perceived as soft on crime. On other occasions, the restraint might emerge from more genuine strategic and solidarity considerations, or the well-known ‘rally round the flag’ effect, namely the unifying effect of external threats. We could also add here the role of defence and parliamentary cultures, in the sense that the principle of executive primacy in security and defence affairs is often

10 Some seminal pieces in this regard are Ole Wæver, ‘Politics, Security, Theory’ (2011) 42(4–5) Security Dialogue 465; Jeff Huysmans, Security Unbound: Enacting Democratic Limits (Abingdon, Routledge, 2014); and Michael Williams, ‘Securitization as Political Theory: The Politics of the Extraordinary’ (2015) 29(1) International Relations 114. 11 Jonathan Bright, ‘In Search of the Politics of Security’ (2015) 17 British Journal of Politics and International Relations 585.

248  Anna Herranz-Surrallés widely accepted.12 Finally, the marginalisation of parliaments may also result from the growing asymmetries of information in the ever more specialised domain of security policy and the empowerment of intelligence agencies. On the other hand, a recent strand of literature has problematised the assumption that security policy is detrimental to political debate and parliamentary scrutiny. For example, focusing on the UK, some studies have demonstrated that since the early 2000s, security issues have been the object of growing parliamentary scrutiny by the House of Commons, even more intensively than other domains.13 Following the same line of argument, other studies have made the case that security politics has ceased to be the domain of exception and has become a normal political activity, frequently subject of public controversies, political mobilisation and parliamentary scrutiny.14 This transformation is attributed to the expansion of the notion of security, which links to a broad range of domestic policies from migration to energy, and scandals relating to massive intelligence gathering or unlawful detention practices by Western democracies.15 Also in more traditional domains of security, such as the conduct of military operations, recent studies have found that the deployment of armed forces abroad has become subject to more frequent parliamentary debates and traditional party-political cleavages.16 All in all, this strand of literature focuses on the ‘parliamentary efforts at (re)claiming security affairs’.17 However, the question we are concerned with in this chapter is whether this ‘normalisation hypothesis’ also applies to the CSDP and, if so, to what effect in terms of recalibrating executive–legislative relations. In the context of the EU, normalisation would imply that security policy is gradually being dealt with following the same procedures as other policy domains and that greater political salience leads to stronger parliamentary activism. Yet, there are also reasons to believe that the security-democracy nexus remains more challenging at the EU level than in the context of national security policy for the following reasons. First, the idea of ‘normalisation’ squares badly with the governance of the CSDP, which has remained a special area of cooperation outside the Community method, even after the adoption of the Lisbon Treaty, which ‘communitarised’ most other policy areas.18 Despite the fact that the EU has become an autonomous security actor in several respects, the CSDP is formally an intergovernmental domain with limited exceptions to the unanimity rule. However, the institutional set-up of the CSDP has gradually become much blurred, with the proliferation of Brussels-based bodies and the growing use of community resources,

12 Falk Ostermann, ‘France’s Reluctant Parliamentarisation of Military Deployments: The 2008 Constitutional Reform in Practice’ (2016) 40(1) West European Politics 101. 13 Andrew Neal. ‘Parliamentary Security Politics as Politicisation by Volume’ (2018) 5(3) European Review of International Studies 70. 14 See the articles in ‘Special Issue: The Politicisation of Security: Controversy, Mobilisation, Arena Shifting’ (2018) 5(3) European Review of International Studies. 15 Hagmann et al (n 7). 16 Wolfgang Wagner, Anna Herranz-Surrallés, Juliet Kaarbo and Falk Ostermann. ‘Party Politics at the Water’s Edge: Contestation of Military Operations in Europe’ (2018) 10(4) European Political Science Review 537. 17 Hagmann et al (n 7) 10. 18 See Graham Butler, ch 15 in this volume.

Towards the ‘Normalisation’ of Security?  249 most notably for the financing of civilian operations.19 This so-called ‘supranational intergovernmentalism’20 gives rise to what we might call the hybridity challenge for parliaments at both the national and European levels: at the national level, the growing institutional complexity and closed-door deliberations make it difficult for NPs to hold individual governments to account for EU collective decisions; and this weak national parliamentary scrutiny is not compensated for at the European level, since the EP’s prerogatives in a formally intergovernmental and non-legislative domain are constitutionally constrained. The recent CSDP relaunch, which for the first time includes financial instruments subject to the ordinary legislative procedure, warrants an examination of whether the new developments indeed offer greater chances for parliamentary involvement, in line with the normalisation hypothesis. Second, although the observation that security and defence is gaining salience and controversiality also seems to apply to the European level, its positive effect on parliamentary scrutiny is less straightforward. Recent studies have shown that public opinion on the CSDP is strongly divided21 and that positions of Members of the European Parliament (MEPs) on CSDP-related topics have polarised, particularly since the seventh parliamentary term (2014–19).22 European defence was also one of the most controversial topics during some of the Spitzenkandiaten debates that preceded the 2019 EP elections.23 However, the expectation that the politicisation of security issues reduces the EU executive–legislative imbalance is more ambiguous. While at the national level, a more critical parliament is certainly a constraint on government, which depends on a parliamentary majority, this is not necessarily the case at the EU level, where there is no clear government–opposition relationship; rather, political competition is often structured along inter-institutional lines. On the one hand, this can be an asset for the EP in relation to foreign policy, as it is not obliged to support the EU executive and can thus play a more autonomous role. On the other hand, this also means that the EP’s cohesiveness as an institution is also important when seeking influence on EU decision-making. Particularly in intergovernmental domains, the EP has often derived its standing from its cohesion and strong political will to develop its internal expertise and claim further scrutiny rights.24 Therefore, internal divisions, even if a standard feature of any representative institution, can also pose a cohesiveness challenge if they lead the EP to lose political clout in the inter-institutional game.

19 Sophie Vanhoonacker, Hylke Dijkstra and Heidi Maurer, ‘Understanding the Role of Bureaucracy in the European Security and Defence Policy: The State of the Art’, European Integration Online Papers, 14, 2010, http:// eiop.or.at/eiop/texte/2010-004a.htm. For the institutional set-up of the CSDP, see also section III below. 20 Jolyon Howorth, ‘Decision-Making in Security and Defence Policy: Towards Supranational InterGovernmentalism?’ (2012) 47(7) Cooperation and Conflict 433. 21 Davide Angelucci and Pierangelo Isernia, ‘Politicization and Security Policy: Parties, Voters and the European Common Security and Defense Policy’ (2020) 21(1) European Union Politics 64. 22 Anna Herranz-Surrallés, ‘Paradoxes of Parliamentarization in European Security and Defence: When Politicization and Integration Undercut Parliamentary Capital’ (2019) 41(1) Journal of European Integration 29. 23 Alexandra Brzozowski ‘Spitzenkandidaten Revive European Army Talk’, Euractiv, 3 May 2019, https://www. euractiv.com/section/eu-elections-2019/news/spitzenkandidaten-revive-european-army-talk. 24 Daniel Thym, ‘Beyond Parliament’s Reach? The Role of the European Parliament in the CFSP’ (2006) 11 European Foreign Affairs Review 109; Guri Rosén, ‘EU Confidential: The European Parliament’s Involvement in EU Security and Defence Policy’ (2015) 53(2) Journal of Common Market Studies 383. For economic governance, see also Katharina L Meissner and Magnus G Schoeller, ‘Rising Despite the Polycrisis? The European Parliament’s Strategies of Self-Empowerment after Lisbon’ (2019) 26(7) Journal of European Public Policy 1075.

250  Anna Herranz-Surrallés Finally, there is also the sovereignty challenge, which refers to the (often controversial) question about which parliamentary level in the EU should be mandated to scrutinise security and defence issues. This question has gained relevance with the growing representation of populist parties in the EU, a large majority of which are opposed to further integration in security and defence due to sovereignty concerns.25 This rise in contestation over European security policy was long anticipated by securitisation theorists such as Ole Waever, who already in the 1990s posited that state and societal security appeared to be decoupling: while the EU was set to become a security actor in its own right, a process driven by mainstream political elites, European societies, rather than seek protection from the EU, were more likely to react to growing transnational risks by calling back the state and its ability to control transboundary flows.26 Phenomena such as populism, Euroscepticism and Brexit have been interpreted in these terms of ‘ontological security’, namely the fact that some segments of the population consider the EU a threat to national identity and an obstacle for states’ ability to protect their citizens.27 This makes the EP’s role more challenging, given that those in favour of keeping security policy at the Member State level will also advocate retaining national parliamentary control, which, as argued above, is not enough for scrutinising a de facto growingly integrated policy domain. Another aspect to bear in mind is therefore whether the new defence initiatives are also met with this type of sovereignty-related contestation. The remainder of the chapter examines the evolution of the executive–legislative (im)balance in the CSDP considering these three interrelated challenges. Each of the following chronological sections examines: (1) whether the CSDP has gone beyond intergovernmentalism and what the resulting weak spots for parliamentary scrutiny are (hybridity challenge); (2) the EP’s degree of unity, as reflected in voting patterns on CSDP issues, and their impact on its ability to redress the executive–legislative imbalance (cohesiveness challenge); and (3) the evolution of the debates on national versus supranational parliamentary oversight of the CSDP (sovereignty challenge). The expectation is that the evolution of these three challenges over time will lead to different chances for the EP to recalibrate executive–legislative relations in security and defence policy.

Figure 14.1  Challenges in the integration-parliamentarisation nexus in EU security and defence policy Security and defence integration

Hybridity challenge Cohesiveness challenge Sovereignty challenge

Supranational parliamentarisation

25 In a study on the positions of 37 parties classified as populist (including left-wing parties), 15 were found to be against the EU role in security and defence, seven partially in favour, nine in favour and six with no position. See Rosa Balfou, Laura Basagni, Anne Flotho-Liersch et al, ‘Divide and Obstruct: Populist Parties and EU Foreign Policy’ German Marshal Fund No 13, https://www.gmfus.org/sites/default/files/Populists%20and%20EU%20 Foreign%20Policy.pdf. 26 Ole Wæver, Concepts of Security (Copenhagen, Institute of Political Science/Copenhagen University, 1997) 327. 27 Brent J Steele and Alexandra Homolar, ‘Ontological Insecurities and the Politics of Contemporary Populism’ (2019) 32(3) Cambridge Review of International Affairs 214.

Towards the ‘Normalisation’ of Security?  251

III.  Scrutinising the CSDP’s First Steps (2003–08): A Dynamic Parliament Playing Catch-up Although the birth of the CSDP dates back from 1999, when the European Council agreed on the so-called Helsinki Headline Goals for the establishment of a European Rapid Reaction Force, the new policy materialised in 2003 with the launch of the first four crisis management operations (two civilian and two military). The years that followed were also intense – for example, in 2005 alone, the EU initiated nine new operations. To make this possible, a host of new intergovernmental bodies had been created since the early 2000s, including the EU Military Committee (EUMC), composed by Member States’ highest ranking military officials and assisted by the EU Military Staff (EUMS), the Political and Security Committee (PSC) and soon thereafter also the European Defence Agency (EDA). The inclusion of permanent military staff in the EU institutional structure and the idea of common multinational forces ‘broke a major taboo’ that had been in place since the failed European Defence Community in the 1950s.28 At the same time, the CSDP also developed a civilian crisis management component, which was financed from Community resources and entailed a growing delegation of tasks to the Commission, for example, in the management and implementation of the EU Rapid Reaction Mechanism. Therefore, while formally intergovernmental,29 the inclusion of a supranational dimension with civilian operations and the intensive transgovernmentalism implied in the ever-closer interaction between defence bureaucracies marked the start of the institutional hybridity of this policy domain and, with it, a growing challenge for parliaments. Pioneer studies on the role of NPs noted their difficulties in terms of keeping up with those rapid developments. A survey conducted in 2007 on the parliamentary involvement in four CSDP operations revealed that only a small number of parliaments (between six and 12 depending on the operation) had some say in approving their countries’ participation.30 In several cases, no discussion was held, even in countries contributing military and civilian personnel to the operations (eg, Spain, Belgium and Romania). Concerns emerged on the asymmetries of information between executive and legislative powers, and the fact that, even for parliaments with a prerogative to approve deployments of armed forces, information was only being provided ex post.31 Also at the EU level, chances of parliamentary oversight at the beginning of the 2000s were severely limited, since the EP had no formal prerogative other than the vague information and consultation rights established for the CFSP and little internal specialisation in security and defence matters.32 The EP’s role was even more 28 Michael E Smith, Europe’s Common Security and Defence Policy: Capacity-Building, Experiential Learning, and Institutional Change (Cambridge, Cambridge University Press, 2017) 31. 29 See n 6 above. 30 Hans Born, Suzana Anghel, Alex Dowling and Teodora Fuior, ‘Parliamentary Oversight of ESDP Missions’ [2008] Geneva Centre for the Democratic Control of Armed Forces (DCAF) Policy Paper No 28, 15–19. 31 Giovanna Bono, ‘Challenges of Democratic Oversight of EU Security Policies’ (2006) 15(4) European Security 431. 32 The EP’s involvement in the CFSP was defined in art 21 (currently art 36), which establishes that the ‘Council shall regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and inform it of how those policies evolve’. The EP could also ask questions and debate on CFSP issues on the basis of an annual report submitted by the Council. On the EP’s role at that time, see also Wolfgang Wagner, ‘The Democratic Control of Military Power Europe’ (2006) 13(2) Journal of European Public Policy 200; Esther Barbé and Anna Herranz-Surrallés, ‘The Power and Practice of the European Parliament in European Security Policies’ in Dirk Peters, Wolfgang Wagner and Nicole Deitelhoff (eds), The Parliamentary Control of European Security Policy (Oslo, ARENA Centre for European Studies, 2008).

252  Anna Herranz-Surrallés precarious in the also intergovernmental ‘third pillar’ on Justice and Home Affairs. This is because CFSP/CSDP decisions are considered non-legislative acts, and hence the meaning of ‘consultation’ has always been more contested and vague, as the Council is not formally obliged to wait for the EP’s opinion.33 However, these early years were characterised by an activist and cohesive EP, both in terms of pushing for an ambitious CSDP and in claiming its space in the newly created policy. While the EP had long been lobbying for security and defence integration,34 from the early 2000s it also started denouncing the ‘serious democratic deficit with regard to the CSDP as long as European decision-making is not being controlled by a directly-elected European people’s representation’.35 Not short of ambition, the EP passed a resolution in 2003 claiming that crisis management operations required previous parliamentary consultation and approval by absolute majority of the EP.36 The EP’s annual reports on the CFSP during that period were also highly critical of the inadequate parliamentary scrutiny of the decision-making and financing of CSDP operations, as well as the lack of accountability of the European Defence Agency.37 It is also remarkable that reports touching on the CSDP were highly consensual. For example, one of the first reports on the implementation of the CSDP in 2008 was adopted with 86 per cent of votes in favour in the Foreign Affairs Committee (AFET) (see also Figure 14.2). Cohesiveness was therefore not a challenge for the EP during this period. The sovereignty challenge did not figure prominently either. Parliamentary oversight of security and defence policy at that time rested almost exclusively on the NPs. There was also a transnational parliamentary component through the Assembly of the Western European Union (WEU), an institution with a permanent secretariat, organised into political groups and with relatively strong powers, most notably the prerogative to adopt/reject the annual report presented by the Council of the WEU.38 However, the gradual absorption of WEU functions that started with the Treaty of Amsterdam (1999) prompted NPs to start preparing for the dissolution of the WEU Assembly, which eventually took place in 2011. The discussions that already started in 2001 among NPs revealed widespread support for the idea of a new interparliamentary body that would include a strong representation of the EP. The Belgian Parliament, which kick-started the discussion by organising a

33 On the EP’s role in Justice and Home Affairs and the use of consultation pre-Lisbon, see Angela Tacea, ch 16 in this volume. 34 Already by the 1970s, the EP passed a resolution expressing that ‘cooperation in the foreign policy sphere must eventually take into account defence and security policy’; Momersteeg Report, April 1973. 35 European Parliament, ‘European Parliament Resolution on the Establishment of a Common European Security and Defence Policy with a View to the European Council in Feira’ [2000] B5-0505/2000. 36 European Parliament, ‘Report on the New European Security and Defence Architecture – Priorities and Deficiencies’ [2003] A5-0111/2003. 37 The EP adopts annual reports on the implementation of the CFSP in response to the Council’s homonymic report (see also n 32 above). Although the Council produces only one report for both the CFSP and the CSDP (the latter being an integral part of the former), the EP has also adopted annual reports on the implementation of the CSDP sporadically before the entry into force of the Lisbon Treaty and more regularly afterwards (see also sections IV and V below). 38 With its origins in 1954, with the Modified Brussels Treaty, the WEU was the intergovernmental organisation where 10 EU Member States (excluding the neutral countries and Denmark) coordinated their defence policies, including the possibility to conduct of crisis management operations since 1992. For the parliamentary dimension of the WEU, see Stefan Marschall, ‘Transnational Parliamentary Assemblies and European Security policy’ in Dirk Peters, Wolfgang Wagner and Nicole Deitelhoff (eds) The Parliamentary Control of European Security Policy (Oslo, ARENA Centre for European Studies, 2008).

Towards the ‘Normalisation’ of Security?  253 dedicated interparliamentary meeting in 2001, presented a proposal for such a body, with a view to ‘guaranteeing the European Parliament its primacy and its natural key role in the construction of Europe’ and continuing ‘to work towards the CSDP becoming a competence of the European Parliament’.39 The issue remained unresolved during the debates on the Constitutional Treaty, prefiguring the interparliamentary tensions that would emerge with the Lisbon Treaty. However, during the early 2000s, there was an agreement that, owing to the growing civilian component of the CSDP and the challenges of oversight of this policy domain, the EP was required to play a more central role in this field. The combination of a fast-growing institutional hybridity of the CSDP and the positive winds in terms of intra-EP cohesiveness and sovereignty debates facilitated a highly dynamic role of the EP. The sixth legislative term (2004–09) was prolific in terms of internal changes in the EP to build up its capacity to deal with the CSDP, most notably the creation of the Sub-committee on Security and Defence (SEDE) within the AFET and the setting up of a policy department within the DG External Policies. The Chairmanships of the AFET and the SEDE were undertaken by German conservative MEPs with strong federalist views (Elmar Brok and Karl von Wogau respectively), who pressed for an active EP role in the CSDP, for example, by advocating the adoption of resolutions before the launch of CSDP military operations and systematic discussions of civilian operations in SEDE meetings. The SEDE invited frequently officials of the EDA and started organising visits to CSDP operations’ headquarters.40 This was also the period of relevant inter-institutional agreements (IIAs) such as the 2002 IIA with the Council on access by the EP to sensitive information in the field of CSDP and the 2006 IIA on budgetary discipline and sound financial management, which established the Joint Consultation Meetings (JCMs), a bi-monthly meeting of the chairpersons of the AFET/SEDE with the PSC and Commission to discuss, among other things, the evolution of CSDP operations.41 These procedures were put in place thanks to the EP’s rhetorical pressure as well as the use of the budgetary card, which consisted of lowering the CFSP/CSDP budget until an agreement on greater information and consultation rights was reached.42 Overall, therefore, during this period the EP was able to moderate, even if only slightly and via informal means, the structural executive–legislative imbalance characterising the CSDP.

IV.  Scrutinising a Sluggish CSDP (2009–14): A Defensive Parliament for the Post-Lisbon Re-organisation The immediate years following the entry into force of the Lisbon Treaty were marked by a slowdown in CSDP developments. The protracted period of institutional reform of the EU external relations, which brought to the fore the battle between intergovernmental and 39 Federal Parliament of Belgium, ‘Parliamentary Conference on (ESDP) and Related Parliamentary Scrutiny’, Hemicycle of the Senate Brussels, 2–3 July 2001. For a more in-depth discussion, see Anna Herranz-Surrallés, ‘The EU’s Multilevel Parliamentary (Battle)Field: Inter-parliamentary Cooperation and Conflict in the Foreign and Security Policy’ (2014) 37(5) West European Politics 957. 40 Barbé and Herranz-Surrallés (n 32). 41 For a discussion on the role of IIAs in EU executive–legislative relations more broadly, see Marco Urban, ch 2 in this volume. 42 Barbé and Herranz-Surrallés (n 32); Thym (n 24) 113.

254  Anna Herranz-Surrallés supranational visions, as well as the economic crisis, which put further pressure on defence budgets, contribute to explaining this stagnation. The CSDP entered an ‘autopilot’ phase focused on maintaining the ongoing operations, despite the various conflicts breaking out in the EU’s neighbourhood.43 The novelties introduced by the Lisbon Treaty to make the CSDP more flexible and agile remained unused. Examples include the PESCO, which allowed a group of Member States to undertake closer cooperation in the development of defence capabilities, or the start-up fund, an intergovernmentally administered fund for the preparatory activities for CSDP military operations. Therefore, this period was characterised by contradictory signs of integration. On the one hand, institutional innovations such as the creation of the European External Action Service (EEAS), the merging of the High Representative and Commission Vice-President posts (HR/VP) or the goal of improving civilian and military crisis management coordination anticipated a reinforcement of the hybridity challenge, while the EP’s powers remained largely unchanged.44 The institutional re-organisation thus called for a strong EP stance to avoid the widening of the executive–legislative imbalance. However, on the other hand, the period of inaction and intergovernmental wrangling over the CSDP was making the context less propitious for claiming further scrutiny rights at the supranational level. The EP responded to this situation with relatively high cohesiveness, directing its battles to fortify its role in the post-Lisbon set-up and exerting political pressure for the re-activation of the CSDP. For example, the EP’s legislative report on the organisation of the EEAS was adopted in the Committee with 88 per cent of votes in favour.45 Although it only had the right to be consulted in the setting of the EEAS, the EP soon branded its readiness to hold up the opinion if its positions were not taken into account.46 The EP’s efforts concentrated on preventing the intergovernmentalisation of the EU external relations through the EEAS and ensuring the accountability of the new EU diplomatic system and its doublehatted chief. Even after the creation of the EEAS, the EP was also united in lobbying for a structure that would avoid creating a ‘CSDP bubble’ within the new institution dominated by diplomatic staff of Member States, as this would mean the marginalisation of the Commission’s personnel, who had developed ample expertise in civilian crisis management. In a letter to the then HR/VP, Catherine Ashton, leading MEPs from the four largest parliamentary groups, criticised the fact that the proposed organisation for the EEAS violated the HR/VP’s commitment to create a strong crisis management and peace-building unit in the EEAS by incorporating the relevant Commission staff.47 The EP again used the budgetary

43 Smith (n 28) 26. 44 The Lisbon Treaty only slightly revised art 21 (now art 36) on the EP’s rights in relation to the CSDP by replacing the Council with the HR/VP, formally mentioning the CSDP, and increasing the frequency of parliamentary debates on the implementation of the CFSP/CSDP from one to two per year. For a detailed analysis, see Anna Herranz-Surrallés. ‘The Contested “Parliamentarisation” of EU Foreign and Security Policy: The Role of the European Parliament Following the Treaty of Lisbon’ [2011] PRIF Report No 104, Frankfurt am Main: Peace Research Institute Frankfurt. 45 European Parliament, ‘Report on the Proposal for a Council Decision Establishing the Organisation and Functioning of the European External Action Service’ A7-0228/2010, 6 June 2010. 46 Herranz-Surrallés (n 44) 9–12; Kolja Raube, ‘The European External Action Service and the European Parliament’ (2012) 7(1) The Hague Journal of Diplomacy 65. 47 Letter from MEPs F Brantner, E Brok, R Gualtieri, A Kovatchev, G Lambsdorff and G Verhofstadt to Baroness C Ashton (HR/VP), Strasbourg, 18 January 2011.

Towards the ‘Normalisation’ of Security?  255 lever, in this case putting aside a budget reserve for the EEAS in 2011 that would only be disbursed in the event that the relevant units from the Commission dealing with the Instrument for Stability would be transferred to the EEAS.48 After the waters of institutional reform had settled, the EP focused on lobbying for a more ambitious CSDP, expressing frustration with the lack of implementation of the Lisbon Treaty provisions. For example, in a report discussing the state of play in the CSDP after the Lisbon Treaty, the EP deplored Member States’ inability to define a common position on the Libya crisis and the fact that some Member States had resorted to ad hoc military coalitions outside the EU rather than using the Lisbon provisions that allow for entrusting CSDP operations to a group of Member States.49 The report, adopted with the support of 86 per cent of MEPs in the Committee, also denounced the lack of progress in military capabilities despite a decade of force generation efforts, the inadequacy of resources for CSDP operations, the absence of a permanent Operational Headquarters or the political hurdles in using the EU Battlegroups. Compared to the previous parliamentary term (2004–09), support for the annual reports on the implementation of the CSDP between 2009 and 2014 experienced a slight decline in the Committee, but in plenary yes votes remained stable at around 70 per cent (see Figure 14.2). However, the sovereignty challenge became more prominent during this period and was expressed in both inter-institutional and interparliamentary relations. In the inter-institutional terrain, the post-Lisbon re-organisation was used by some Member States as a chance to safeguard the intergovernmental character of the CSDP. In the view of Michael E. Smith, these efforts were quite successful, in particular by keeping the CSDP ‘under the direct control of the HR/VP, not the EEAS, in order to make it conform to the views of EU member states and keep it away from parliamentary scrutiny’.50 Declaration 14 of the Lisbon Treaty, inserted at the insistence of the UK, was also a ‘firewall’ against further supranationalisation by establishing that ‘the provisions covering the Common Foreign and Security Policy do not give new powers to the Commission to initiate decisions nor do they increase the role of the European Parliament’. On the interparliamentary dimension, this period was also characterised by strong tensions, caused in large part by the disagreement on the extent of the EP’s role in the new Interparliamentary Conference (IPC) on the CFSP/CSDP, to be established in compliance with the Lisbon Treaty and in replacement of the dissolved WEU Assembly. A majority of the NPs became warier of the EP’s role in the conference, arguing that due to the mostly intergovernmental character of the CFSP/CSDP, NPs should remain the principal channel of democratic representation.51 As a result, the final model of IPC skewed closer to the NPs’ position, giving the EP a much more limited role than it had hoped for. Overall, this period was characterised by a defensive role of the EP in response to the institutional hybridisation fostered by the post-Lisbon reforms. The relatively high internal cohesion allowed the EP to put up strong fights, for example, in the negotiations of the EEAS or the ‘Declaration of Political Accountability’ adopted by the HR/VP in 2010.52 The EP also sought the recalibration of executive–legislative relations via the Court of Justice of the 48 ibid. 49 European Parliament. ‘Report on the Development of the Common Security and Defence Policy Following the Entry into Force of the Lisbon Treaty’ A7-0166/2011. 50 Smith (n 28) 254. 51 For a detailed account of the negotiations of the IPC on the CFSP/CSDP, see Herranz-Surrallés (n 39). 52 Raube (n 46).

256  Anna Herranz-Surrallés European Union (CJEU), in particular by bringing the Council to court for the agreements with Mauritius and Tanzania in the context of the CSDP maritime Operation Atalanta. The CJEU rulings in 2014 gave a moderate victory to the EP by acknowledging its right to be informed on international negotiations, even in areas where it does not have decisionmaking powers, such as CSDP-related agreements.53 However, this period also shows that sovereignty-related concerns on the part of Member States and NPs also limited the scope for claiming further supranational parliamentary oversight.

V.  Scrutinising the CSDP’s Relaunch (2015–19): A Divided Parliament for a Defence Union? The start of the eighth European legislative term in 2014 coincided with a sequence of critical events: the enduring consequences of Russia’s annexation of Crimea, the start of the refugee crisis due to a further deterioration of the conflict in Syria, and major terrorist attacks in Paris, which led to the first ever activation in 2015 of the EU mutual assistance clause contained in Article 42 of the Treaty on European Union (TEU) and introduced by the Lisbon Treaty. The election of Donald Trump in the US and the result of the UK’s Brexit referendum in 2016 contributed further to the sense of ‘existential crisis’ mentioned in the EU Global Strategy. In this context, described as marking ‘the end of the EU’s postmodern strategic unconsciousness’,54 the EU launched a package of defence measures aimed at boosting military capabilities. These included, for the first time, financial instruments to be charged to the EU budget amounting to €20 billion55 and a series of institutional innovations, including PESCO and the Coordinated Annual Review on Defence (CARD). According to the Commission, the ambition behind this battery of initiatives was the creation of ‘a fully-fledged European Defence Union by 2025’.56 Despite the integrationist rhetoric, the new measures did not entail any major step towards the communitarisation of the CSDP, but further institutional hybridity. On the one hand, the EDF, as initially envisaged by the Commission, was an example of supranationalism with an intergovernmental component: while being an EU fund, approved following the ordinary legislative procedure and managed by the Commission, the implementation was to be delegated to the EDA, an intergovernmental agency that reports to the defence ministers of the Member States. The first delegation agreements between the Commission and the EDA were signed in 2015 and 2017 in the context of preparatory actions for the research component of the EDF.57 The legal basis chosen for the EDF also reflected the 53 For a more detailed discussion of the CJEU rulings, see Butler, ch 15 in this volume. 54 Simon Duke, ‘The Enigmatic Role of Defence in the EU: From EDC to EDU?’ (2018) 23(1) European Foreign Affairs Review 72. 55 The proposed budget for the EDF is €13 billion for the 2014–20 financial framework. The defence-related funds also include about €6.5 billion for military mobility as part of the Connecting Europe Facility. At the time of writing, these amounts are being revised in the context of the negotiations of the Multi-annual Financial Framework to accommodate the COVID-19 situation. 56 European Commission, ‘European Commission Welcomes First Operational Steps Towards a European Defence Union’ [2017] Press Release IP/17/5205. 57 European Defence Agency, ‘Commission and EDA Sign Delegation Agreement for Preparatory Action on Defence Research’, 17 May 2017, https://www.eda.europa.eu/info-hub/press-centre/latest-news/2017/05/31/ commission-and-eda-sign-delegation-agreement-for-preparatory-action-on-defence-research.

Towards the ‘Normalisation’ of Security?  257 growing hybridity, as it rested on industry and research (Articles 173, 182 and 283 TFEU) even if the Commission’s proposal clearly stated that the goal is to ‘preserve the EU’s strategic autonomy and meet its current and future security needs’.58 On the other hand, other measures were an example of intergovernmentalism with a supranational touch. For example, PESCO was approved in the Council by QMV and entails binding obligations on participating Member States, including on defence spending and on ‘fast-track political commitment’ for the deployment of military forces.59 The monitoring of compliance with commitments in PESCO and CARD were also entrusted to the EDA, which provides the secretariat in coordination with the EEAS and the EU Military Staff. This ‘Brusselisation’60 dynamic was also strengthened in 2017 with the establishment of the Military Planning and Conduct Capability (MPCC), the seeds of an EU permanent military headquarters, which is to become fully operational by the end of 2020. These developments were welcomed by the EP, which in 2016 passed a resolution in support of a European Defence Union.61 The EP also claims to have sponsored the inclusion of a pilot project for an EU-funded defence project in the annual budgets of 2015 and 2016, pre-figuring the EDF.62 However, in contrast to the previous legislative terms, the EP’s cohesiveness on CSDP matters experienced a sharp decline. As Figure 14.2 shows, support for the annual reports on the implementation of the CSDP during the eighth legislature remained firmly around a meagre 55 per cent. Support was even lower for some other CSDP reports, for example, the above-mentioned resolution on the European Defence Union, which passed with only 53 per cent of affirmative votes in plenary. The rise in opposition to CSDP developments reflects partly a traditional left–right polarisation, with left-wing parties expressing concern with the ‘militarisation’ of the EU and growing defence spending. However, contestation also has a sovereignty dimension, with a rise of voices against European integration in general, and security and defence policy in particular.63 The complex negotiations for the EDF reflect these tensions. Despite having reached an inter-institutional agreement after eight rounds of trialogue meetings, the EP resolution on the EDF in first reading passed by a low margin (56 per cent of votes in favour). Figure 14.3 shows that contestation came from the two ends of the political spectrum. The Left and the Greens were almost unanimously against the EDF, including on procedural grounds. Left-wing MEPs, including many Socialists, strongly objected the choice of legal basis of the EDF, considering it a manoeuvre to circumvent the Treaty limitations, which exclude the possibility of charging military spending to the EU budget. An amendment tabled by the Green group remarked that ‘as long as the European Council, in compliance with Article 42(2) TEU, acting unanimously, did not decide to establish a common defence,

58 European Commission, ‘Establishing the European Defence Fund’ COM (2018) 476 final, 2. 59 Council of the EU, ‘Council Decision Establishing Permanent Structured Cooperation (PESCO) and Determining the List of Participating Member States’ [2017] 14866/17, OJ L 331, 14.12.2017, p 57–77. 60 David Allen, ‘Who Speaks for Europe?’ in John Peterson and Helene Sjursen (eds), A Common Foreign Policy for Europe? Competing Visions of CFSP (London, Routledge, 1998) 43. 61 European Parliament ‘European Parliament Resolution on the European Defence Union’ [2016] P8_TA 0435. 62 Interview, European Parliament, Brussels, March 2018. 63 For a more detailed discussion of the patterns of politicisation, see Wagner et al (n 16).

258  Anna Herranz-Surrallés Figure 14.2  Evolution of support for annual report on the implementation of the CSDP 86 78

79 72

76 73

73

70 69

69

68

63

61 55

55

59 55 51

2008

2010

2012

2013

2015 Committee

2016

2017

2018

2019

Plenary

Figure 14.3  Voting results on the April 2019 Report on the European Defence Fund (by group) 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%

GUE-NGL Greens-EFA

S&D

ALDE YES

EPP NO

ECR

EFDD

ENF

ABS

there is no political and legal basis for the use of Union budget funded programmes’.64 Limited provisions on parliamentary oversight and the possibility that the Commission could delegate the implementation of the Fund to the EDA were also strongly criticised (see also below). On the right, the three Eurosceptic groups largely voted against the new Fund, arguing strongly against the expansion of integration into a core area of national sovereignty. Only the Alliance of Liberals and Democrats for Europe (ALDE) and European People’s Party (EEP) groups were united in the support of the EDF, considering it a matter of urgency for the protection of EU citizens. 64 European Parliament, ‘Amendments 1–265, Annual Report on the Implementation of the Common Security and Defence Policy’ 2018/2099(INI).

Towards the ‘Normalisation’ of Security?  259 The negotiations of the EDF also caused frictions between parliamentary committees. Following the usual procedure, the EP’s Bureau assigned the responsibility for this dossier, taking into consideration the legal basis of the proposed piece of legislation. Accordingly, the chosen committee to take the lead on the EDF report was the Committee on Industry, Transport and Energy (ITRE), instead of the AFET. This was a controversial decision within the EP itself, being interpreted by some as a ‘divide and rule’ strategy that dilutes the EP’s role in security and defence.65 Moreover, the Rapporteur of this file was Zdzisław Krasnodębski, a Polish MEP belonging to the European Conservatives and Reformists (ECR), a political group with a strong intergovernmentalist view of the CSDP. The outcome of the agreement in trialogue was also strongly criticised by left-wing parties for having sacrificed parliamentary scrutiny. Most controversial in this sense was the fact that the management of the fund was established as an implementing act rather than a delegated act, thus limiting the EP’s role, since only in the latter can the EP express objections or revoke the delegation.66 According to some MEPs, this choice could set a damaging precedent for parliamentary oversight in the negotiation of other funds for the 2021–27 financial framework.67 Critical MEPs were only able to press for a direct management of the Fund by the Commission, hence foreclosing in principle the possibility that implementation can be delegated to the EDA. Overall, however, the agreement was interpreted by critics as a surrender of the EP’s rights and a case where MEPs had been hurried to pass the legislation quickly on grounds of the urgency of boosting EU defence capabilities.68 In sum, the combination of the three challenges during this period (further institutional hybridity, low EP cohesiveness and the high salience of sovereignty considerations) appears to have constrained the EP’s ability to reduce the executive–legislative imbalance that had remained almost unchanged following the adoption of the Lisbon Treaty. In its annual reports on the CSDP, the EP still remarked that ‘further European integration should also mean more democratic scrutiny through parliamentary control’ and it called for the setting up of a fully fledged Committee on Security and Defence within the EP.69 One of the reports also made the case that, legally speaking, the administrative expenses of the EDA and the PESCO should be charged to the EU budget, stating that it was ‘resolved to exercise effective parliamentary scrutiny and budgetary control over EDA and PESCO, as provided by the Treaties’.70 However, the low level of support for these reports has reduced the legitimacy of these claims. Even the leadership of the SEDE during this period, under Anna Fotyga from the ECR, voted against them. Debates on upgrading the SEDE into a full committee also remained particularly divisive and little progress was made on updating the 2002 IIA on access to classified information in the CSDP that began

65 Interview, European Parliament, Brussels, March 2018. 66 For a more in-depth analysis on the parliamentary oversight in delegated/implementing acts, see Thomas Christiansen and Sabina Lange, ch 4 in this volume. 67 Alexandra Brzozowski, ‘EU Lawmakers Rubber-Stamp European Defence Fund, Give up Parliamentary Veto’, Euractive, 18 April 2019, https://www.euractiv.com/section/global-europe/news/eu-lawmakers-rubberstamp-european-defence-fund-give-up-parliamentary-veto-2. 68 ibid. 69 European Parliament, ‘Report on the Annual Report on the Implementation of the Common Security and Defence Policy’ A8-0375/2018, 7. 70 European Parliament, ‘Report on Constitutional, Legal and Institutional Implications of a Common Security and Defence Policy: Possibilities Offered by the Lisbon Treaty’ A8-0042/2017, 8–9.

260  Anna Herranz-Surrallés in the previous parliamentary term.71 Overall, therefore, during the eighth legislature, a divided EP struggled to catch up with a dynamic CSDP.

VI. Conclusion The EP has often been described as the big winner of the Lisbon Treaty. This certainly applies to the domain of EU external action, where its role was upgraded with treaty-making powers, arguably one of the most significant recalibrations of executive– legislative relations since the Maastricht Treaty.72 However, when it comes to the CSDP, the post-Lisbon era did not bring about any significant change in the European balance of powers. The most significant rebalancing act took place in the years preceding the Lisbon Treaty, when the EP undertook persistent efforts to avoid being left behind in a new and fast-growing European policy. If anything, the post-Lisbon period has meant an increase of the executive–legislative imbalance, given that the recent relaunch of the CSDP has so far not been matched by an upgrade of the EP’s involvement, either formally in the rights guaranteed to it or in practice, as has been demonstrated in this chapter. Therefore, unlike several other chapters in this volume, which describe a slow but linear process of parliamentarisation, the case of the CSDP is characterised by ups, downs and setbacks. This chapter has sought to explain this unexpected evolution by revisiting debates on the security-democracy nexus and discussing the challenges to the ‘normalisation’ of security once we move from the national to the European context. The first challenge described was the growing institutional hybridity of the CSDP domain and the consequent difficulties for the European and national parliaments to keep an appropriate level of scrutiny. The hybridity challenge was also defined as an opportunity, given that any move away from intergovernmentalism can provide ammunition for the EP to claim further scrutiny rights. However, the chapter has also argued that in order for the EP to be able to seize such an opportunity, it faces two additional challenges: cohesiveness and sovereignty. In other words, it has been argued that the EP’s ability to reduce the executive–legislative imbalance in the CSDP may suffer when the EP appears divided and when sovereignty considerations in the Member States and NPs run high. All in all, therefore, this chapter has found little evidence of the ‘normalisation hypothesis’ in European security policy, implying stronger parliamentary involvement as the result of growing public salience and party-political contestation. Even steps towards greater integration in the CSDP show signs of exceptionalism or so-called ‘emergency politics’, a mode of policy-making that further empowers the executives.73 As reflected in the negotiations of the EDF, it was precisely the political forces that were in favour of quick developments in the CSDP that appeared most ready to forgo supranational parliamentary scrutiny.

71 For a more detailed account of the EP’s role in the eighth parliamentary term, see Herranz-Surrallés (n 22). 72 On the changing role of the EP and NPs in trade policy, see Fasone and Romaniello, ch 4 in this volume; and Katharina L Meissner and Guri Rosén, ch 11 in this volume. 73 Jonathan White, ‘Emergency Europe’ (2015) 63 Political Studies 300. See also the Introduction to this volume.

Towards the ‘Normalisation’ of Security?  261 The controversy over the legal basis of the new fund is also an indication that procedural short-cuts were used to advance the security and defence agenda in response to the uncertainties of the EU’s strategic environment. Moreover, the politicisation of European security affairs did not show the same potential for boosting parliamentary activism as expected in the context of national security policies. Rather, the observed politicisation of the CSDP raises a democratic dilemma: on the one hand, greater political debate is a sign of democratic vibrancy and an indication that EU security policy is growingly consequential; on the other hand, in order for the EP to have a foothold in an intergovernmental (yet growingly hybrid) domain, it needs to present a united and pro-integrationist front. The normative assessment of the diagnosed executive–legislative imbalance might strongly differ, depending on the interpretation of CSDP developments. For some, the current changes are not going to lead to a Defence Union anytime soon.74 From this perspective, what is needed is mainly a strengthening of parliamentary oversight at the national level. However, if one accepts the argument of the growing hybridity, current CSDP developments also demand greater supranational parliamentarisation. A strong parliamentary involvement is also necessary to prevent any further decoupling of state and societal security, which might deteriorate if EU governments continue transferring security policy to the European level without a parallel shift in the public perception of the EU as a locus of protection. As discussed above, this decoupling was arguably a key factor leading to the Brexit vote and also plays into the rise of Euroscepticism. Therefore, regardless of the direction that the CSDP might take, a united and highly specialised EP, which could act in true partnership with the NPs, would be desirable not only for the democratic quality of European security policy, but also for the long-term acceptability of European integration. Looking ahead, the new leadership of SEDE in the ninth legislative term (2019–24) reflects that the CSDP is taking on priority in the new Parliament. The elected chairwoman, the French Nathalie Loiseau, belongs to the rebranded ALDE (Renew Europe), the political group that has been most adamant on the need for a European Defence Union and even a European Army by 2024.75 However, in a context where the cohesiveness and sovereignty challenges are likely to remain high, an additional challenge will be to avoid parliamentary scrutiny falling through the cracks of the ambition to move quickly towards defence integration.

74 Andrew Cottey, ‘Astrategic Europe’ (2020) 58(2) Journal of Common Market Studies 276, https://doi. org/10.1111/jcms.12902. 75 The idea of a European Army by 2024 was defended by the ALDE lead candidate Guy Verhofstadt and has also been endorsed by the French government of En Marche, the party providing the biggest national delegation within Renew Europe. See Alexandra Brzozowski ‘Spitzenkandidaten Revive European Army Talk’, Euractiv, 3 May 2019, https://www.euractiv.com/section/eu-elections-2019/news/spitzenkandidaten-revive-european-army-talk; Helene Fouquet, ‘France Maintains the Goal of Creating a “European Army”’, Bloomberg, 14 July 2019) https:// ww.bloomberg.com/news/articles/2019-07-14/france-maintains-goal-of-creating-a-european-army-minister.

262

15 The Balance of Powers and the EU’s Common Foreign and Security Policy GRAHAM BUTLER

I. Introduction The nature of how legal relationships have evolved between the political institutions of the European Union (EU) has undoubtedly changed over the history of European integration. There is one particular area of EU law, the Common Foreign and Security Policy (CFSP), which has remained largely apart from these institutional developments within the legal order.1 The CFSP was incorporated into EU primary law only at the 1992 Maastricht Treaty; prior to this, it was structured in an intergovernmental format outside of the EU legal framework altogether. Despite many revisions of primary law since the Maastricht Treaty, the CFSP has managed to remain a phenomenal exception to normal law-making in the EU legal order within one EU institution, the Council, ever since. That said, the Lisbon Treaty did make some modest changes to the CFSP, which have had implications for the balance of powers in the policy domain. Hence, it is necessary to evaluate the institutional developments with respect to the CFSP over the past decade. There is a perennial differential when it comes to foreign policy – the fact that there exists an executive prerogative. This narrative has some sway, given that the involvement of parliaments and legislatures in foreign policy tends to be excluded compared to other policies. Many legal orders draw a distinction between legislative powers internally and executive powers externally. Furthermore, other jurisdictions, in particular the US, have long seen the debate between executive power and legislative power for external policies. The relationship between actors in US foreign policy has been notably called ‘tension in the twilight zone’.2 The actual policies pursued in respect of the CFSP are aligned by the Council of the European Union and the European Parliament (EP), representing a European approach to global affairs. Yet, the actual common feature of the CFSP is that it is merely the interests of the states through the Council, and not the peoples through the EP. Control mechanisms

1 See, G Butler, Constitutional Law of the EU’s Common Foreign and Security Policy: Competence and Institutions in External Relations (Oxford, Hart Publishing, 2019). 2 See L Henkin, Constitutionalism, Democracy, and Foreign Affairs (New York, Columbia University Press, 1990) ch 1.

264  Graham Butler between institutions for EU policies are an inherent part of the EU constitutional order. In non-CFSP cases, it is the Council approving negotiating directives for the Commission for international agreements, it is the EP having consent rights, and it is the Court of Justice of the European Union (the Court) having adjudication powers for disputes brought before it in the post-Lisbon era. These characteristics are just some of the imperative factors that are considered relevant for a Union based on the rule of law. Yet, this typical starting point does not apply to the CFSP. This chapter will explore how the CFSP is structured in primary law and will demonstrate the (im)balance of powers that exists within the EU legal order. It does so by first setting out the concept of balance of powers and how EU primary law sets out the arrangements for institutional and non-institutional actors in the decision-making process. It then moves on to how executive power in the CFSP is held by the Council and how it seeks to shield the policy field from other actors. Following this, the role of the EP is analysed, as one half of the EU legislature, as it tries to exert influence over a legal domain that is non-legislative in its nature. In concluding, the chapter strives to determine the sustainability of the CFSP as an area of EU law that can continue to be subject to ‘specific rules and procedures’3 in comparison to other EU policies. Whilst the CFSP will continue to be retained as a legal basis for foreign policy actions, the growth of EU competencies founded on a non-CFSP legal basis will gradually reduce the need for CFSP legal acts in the future. As will be shown below, the pre-Lisbon situation whereby there was minimal litigation to try and alter the balance of powers changed after the coming into force of the Lisbon Treaty. Post-Lisbon, there has been greater pressure for the CFSP as a policy domain to become more normalised, namely, through practice and litigation. This chapter argues that the political location of decision-making for the CFSP – within the Council – is unsustainable in the years and decades ahead. Now that there has been over 10 years of practice with the Lisbon Treaty, it is contended that, at the very least, the future ought to see the EP’s consent power for international agreements extended to those concluded on a CFSP legal basis.

II.  The Balance of Powers and the CFSP Institutionally, the EU operates on the basis of separation of powers, with a strong coordinating form of law-making. This may be the general premise, but it is not the case for the CFSP. By looking to the treaties, it is evident that the definitive line between the executive and legislative branches of powers are unclear in EU law.4 The executive for EU policies is typically associated with the Commission. As has been asserted, ‘the Commission may be regarded, in the terms it uses to define itself, as the principal “executive organ” of the new legal order of international law constituted by the … Union’.5 However, for the CFSP, executive power rests with the Council.

3 Article 24(1) TEU. 4 K Lenaerts, ‘Some Reflections on the Separation of Powers in the European Community’ (1991) 28 Common Market Law Review 11, 13. 5 Case T-562/12 Dalli v Commission [2015] ECLI:EU:T:2015:270, para 134.

The Balance of Powers and the EU’s Common Foreign and Security Policy  265 The EU legislature being made up of two bodies means that Europeans are represented at Union level, first, through national governments in the Council (with their national parliaments’ implicit approval) and, second, through directly elected representatives in the EP. However, this European system of democracy does not apply to all policy domains. For the CFSP, it is an atypical policy field with strong distinctions. The ‘institutional triangle’6 of the Commission, the Council and the Parliament involved in the law-making does not apply with respect to the CFSP and thus is a distortion of the balance of power at the specific instruction of the Member States. Executive power coupled with legislative and judicial deference are two hallmarks that are associated with any form of foreign policy. This fits with the regular political tone that the CFSP is just mere political positioning, without any true law-making. The fact is that this could not be further from the truth. The amount of law in foreign policy is normally of a limited nature, but yet, EU foreign policy is just not a mere policy and has a strong legal dimension to it. Not all EU foreign policy is law, but the execution of it can entail the adoption of legal acts, namely, Decisions made by the Council. Thus, the framework governing EU foreign policy is a legal construct seeking to support a progressively constructive aim of the EU having a more prominent role in global affairs. It relates to policy positions and relationships that the EU has with the wider world. This was most recently asserted in the EU’s 2016 Global Strategy.7 As an overall policy area, EU external relations see tasks dispersed between several different actors – both institutions and non-institutions. Naturally, institutional and non-institutional roles in EU policies are constitutional questions for the Council, the Commission, the office of the High Representative, the European External Action Service, the EP and the European Council. They have an assortment of respective roles when it comes to executing the foreign policy of the EU, given that from a legal perspective, the CFSP is a well-known ‘constitutional dichotomy’8 for its differentiated institutional arrangements. With this, there is an abundance of political positioning within EU foreign policy, but when legal acts are adopted is when the balance of powers questions arise. Whilst the ‘balance of powers’ is a term that has been avoided by the Court,9 it is a better description than ‘institutional balance’ for the CFSP, given that it is not just institutions that are part of the make-up of involved actors. EU foreign policy through the CFSP forms part of the overall regime of EU external action. The CFSP is orientated around Member States’ interests, but should in theory be orientated around the EU’s interests. Bringing together policy positions for EU foreign policy, and later being incorporated into legal acts, requires intense internal coordination

6 T Christiansen, ‘The European Union after the Lisbon Treaty: An Elusive “Institutional Balance”?’ in A Biondi, P Eeckhout and S Ripley (eds), EU Law after Lisbon (Oxford University Press, 2012) 228. 7 ‘Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union’s Foreign and Security Policy (European External Action Service) June 2016’. 8 D Thym, ‘Foreign Affairs’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, 2nd edn (Oxford, Hart Publishing, 2009) 310. 9 PJ Kuijper, ‘The Case Law of the Court of Justice of the EU and the Allocation of External Relations Powers: Whither the Traditional Role of the Executive in EU Foreign Relations?’ in M Cremona and A Thies (eds), The European Court of Justice and External Relations Law: Constitutional Challenges (Oxford, Hart Publishing, 2014) 100.

266  Graham Butler between Member States within the Council. The CFSP aims to, first, bring about a foreign policy for an international organisation and, second, ensure that the Member States coalesce around a common foreign policy vis-a-vis the outside world. Therefore, there are two particular features of the CFSP that are particularly relevant for the balance of powers: first, what the division is between what is considered part of the CFSP, against what can be considered to not be part of the CFSP; and, second, what is the role of the two main political actors – the Council and the Parliament – with respect to the stages of opening, negotiation and conclusion of international agreements, and the legal arrangements that this entails, depending on the legal basis of such international agreements. The implications of these legal basis questions result in a quagmire of institutional politics on the allocation of powers for the CFSP. Whilst it does not say so explicitly, Article 13(2) of the Treaty on European Union (TEU) mandates that each institution shall participate in the practice of the balance of powers.10 Moreover, it can lay the claim to covering all EU policies, including the CFSP. Separately, in recent times, the European sovereign debt crisis exposed deficiencies in the balance of powers across some areas of EU law.11 Since then, a number of initiatives have been taken to rectify this, mainly with the EP playing a game of catch-up.12 Litigation on the CFSP over the past decade has been teasing out the changes that arose as a result of the Lisbon Treaty. Such litigation has principally been taken against the Council, with other institutions believing that the Council had overstepped the powers conferred on it by the Treaties. Litigation by the EP on the CFSP pre-Lisbon was quite modest, for it saw a limited role of litigation in pursuing its institutional objectives. This is despite the Court having said, and restated in later cases,13 that the Parliament in deciding legal acts ‘reflects a fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly’.14 EU foreign policy was once outside of EU law and then placed within a pillar by the Maastricht Treaty. Despite the claimed depillarisation of the EU with the Lisbon Treaty, a welcome achievement in its own right, there is still a sense of abnormality about the CFSP. For whilst formally speaking, the old second pillar has been integrated into what used to be the first pillar, the CFSP is still treated differently institutionally. The range of EU legal acts, from Joint Actions to Common Positions, have been tidied up and consolidated into straightforward CFSP Decisions. Successive treaties streamlined many EU policies and brought them closer to the acquis communautaire, namely, by normalising their procedural dimensions. Yet, for the CFSP, the opposite has occurred. Successive treaties have by and large reinforced its specificity. This can principally be seen by the deliberate choice to retain the CFSP as a policy domain within the TEU with detailed and elaborate provisions, as

10 Article 13(2) TEU: ‘Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation.’ 11 See G Butler and H Snaith, ‘Negative Solidarity: The EU and the Financial Crisis’ in H Krunke, H Petersen and I Manners (eds), Transnational Solidarity: Concept, Challenges, and Opportunities (Cambridge, Cambridge University Press, 2020). 12 See, D Fromage, ‘The European Parliament in the Post-crisis Era: An Institution Empowered on Paper Only?’ (2018) 40 Journal of European Integration 281. 13 For example, Case C-300/89 Commission v Council (‘Titanium Dioxide’) [1991] ECLI:EU:C:1991:244, para 20. 14 Case 138/79 SA Roquette Frères v Council of the European Communities [1980] ECLI:EU:C:1980:249, para 33; Case 139/79 Maizena GmbH v Council of the European Communities [1980] ECLI:EU:C:1980:250, para 34.

The Balance of Powers and the EU’s Common Foreign and Security Policy  267 opposed to nearly all other policy areas, which are located in the Treaty on the Functioning of the European Union (TFEU). This in turn has had an influence on the conceptual thinking of the balance of powers that is very different between the two broadly categorised sectors. The TEU is normatively considered as providing the EU’s constitutional foundations, whereas the TFEU is the operative part. However, that said, for the purposes of EU external relations, the two treaties are linked and, in some cases, policies stretch across both treaties. Nevertheless, the treaties do not do a great job of defining what comes under a CFSP legal basis and what comes under other legal bases. As stated, ‘[s]pecific Treaty procedures associated with policy fields (e.g. CFSP) may operate as institutional lex specialis’.15 Substantively, this leaves open a wide array of matters for executive discretion of the Council. Cooperation in the EU legal order binds the institutions, in that Article 21(3) TEU mandates that the CFSP is to be executed consistently with other policies of the EU,16 despite its decision-making process which avails of the EU institutions in different ways. Moreover, Article 18(4) TEU charges the High Representative with such consistency, and Article 26(2) TEU also brings in the Council. As stated by the Court, institutions must ‘not ignore the rules of law’ and also must not act in a ‘manifestly wrong or arbitrary way’ that is contrary to the premise of institutional cooperation.17 This premise of institutional cooperation was strengthened over time when the actions of certain institutions were clearly not in line with the notion of institutional cooperation.18 Nevertheless, Declaration 1319 annexed to the treaties undermines any notion of balance of powers actually existing for the CFSP, in that Member States still maintain the powers to formulate their own respective foreign policies in international fora. EU law is not necessarily legislative. To illustrate this, the legal acts emanating from the CFSP are not legislative acts, but legal acts. Nonetheless, CFSP Decisions are EU legal acts that are binding, just as they would be if they were legislative acts. The splitting of EU legal acts into legislative matters and non-legislative matters is supported by old case law. In France, Italy, and the UK v Commission,20 the Court said that different treaty provisions 15 C Hillion, ‘Conferral, Cooperation and Balance in the Institutional Framework of EU External Action’ in M Cremona (ed), Structural Principles in EU External Relations Law (Oxford, Hart Publishing, 2018) 130. 16 Article 21(3) TEU: ‘The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union’s external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies. The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.’ 17 Case C-204/86 Greece v Council [1988] ECLI:EU:C:1988:450, para 17. 18 The Court has even referred to institutional cooperation as an obligation. See Case C-65/93 Parliament v Council, ECLI:EU:C:1995:91, para 27. 19 Declaration 13: ‘The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of High Representative of the Union for Foreign Affairs and Security Policy and the establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations. The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States. It stresses that the European Union and its Member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.’ 20 Joined Cases C-188, C-189 and C-190/80 France, Italy, and the UK v Commission [1982] ECLI:EU:C:1982:257.

268  Graham Butler cater for different subject matters. As a result, it cannot be assumed that a legal act is legislative in nature. With this prior endorsement, the Lisbon Treaty drafted by the Member States divided EU legal acts into legislative and non-legislative instruments, and for the CFSP and its decision-making regime within the Council alone, ‘[t]he adoption of legislative acts shall be excluded’.21 This in turn meant there was no longer to be any right of initiative for the Commission. EU policies usually tend to favour the logic of supranational integration.22 However, this is not the case for the CFSP. The origins of what is now the CFSP took place outside of the EU legal structures to begin with. In those times, there was certainly no balance of powers to speak of. This process was inherently contrary to the spirit of the balance of powers that was taking place inside the treaties to begin with. Yet, with the passage of time, the advent of EU foreign policy has undergone increasing legalisation. This goes from initially seeing the coordination of national foreign policy positions outside the EU legal order in an intergovernmental fashion, to coming within the EU legal order, thereby becoming EU or common foreign policy, within a rule-bound system of coordination within the Council, governed by the treaties. This was done to such an extent that today, the legal acts of EU foreign policy are, to a limited extent, subject to judicial review by the Court,23 which acts as a counterweight to the Council’s executive power. Therefore, some general features of the CFSP are of particular note: first, there is no typical right of initiative for the Commission, who are the usual holders of executive power in most EU policy fields; second, the decision-making for the CFSP is through unanimity in the Council; third, the legal acts adopted on a CFSP legal basis are non-legislative acts; fourth, the implementation of CFSP Decisions lies with the High Representative and the Member States; and, fifth, the special status of the CFSP in the EU legal order is compounded by the fact that it is the only policy field that is carved out from the scope of the EU’s flexibility clause.24 In sum, a very particular form of executive power prevails.

III.  Executive Power and the CFSP The EU, as an international organisation, has no autonomous decision-making capabilities for the CFSP. Instead, it is the Council that exercises executive powers when adopting CFSP Decisions. The Council is not a co-legislator in the CFSP, but rather the holder of unabashed executive power. It is the only legal actor empowered to make EU foreign policy decisions that result in a legally binding act. That said, the CFSP is not intergovernmental as is typically claimed;25 rather, it is executed within the rule-bound order of the treaties.

21 Article 31(1) TEU. 22 See S Weatherill, Law and Integration in the European Union (Oxford, Clarendon Press, 1995). 23 See G Butler, ‘The Coming of Age of the Court’s Jurisdiction in the Common Foreign and Security Policy’ (2017) 13 European Constitutional Law Review 673. 24 The EU’s flexibility clause is contained in art 352 TFEU. For more on this point, see G Butler, ‘The EU Flexibility Clause is Dead, Long Live the EU Flexibility Clause’ in A Bakardjieva Engelbrekt and X Groussot (eds), The Future of Europe: Political and Legal Integration Beyond Brexit (Oxford, Hart Publishing, 2019). 25 On this point, see H Sjursen, ‘Not So Intergovernmental after All? On Democracy and Integration in European Foreign and Security Policy’ (2011) 18 Journal of European Public Policy 1078.

The Balance of Powers and the EU’s Common Foreign and Security Policy  269 Classically, foreign policy tends to be understood as beyond the pursuit of legislative actors and retained as reserve powers for executives, for it can be considered a domain of executive power and not legislative power. In this sense, EU foreign policy is no different and is part of the understanding of the history of why the Council has remained at the helm of decision-making. The Council has consistently sought to constrain CFSP matters and keep them within its own remit, for it is of the belief that expertise in EU foreign policy is not found in other EU institutions. The operational provisions of the CFSP are more concerned about Member State coordination rather than EU institutional coordination. Usually, the Council engages in two types of activity in EU foreign policy: self-directed and independent acts through foreign policy pronouncements (and in some cases, the adoption of legal acts, for example, with respect to restrictive measures); and entering into formalised international agreements – treaties – with third entities. The Council is not internally controlled by supranational mechanisms and in no way does it want to be subjugated to any other body, as demonstrated by treaty revisions in Intergovernmental Conferences. This (im)balance of powers between the Council and actors in EU foreign policy has not arisen out of nowhere; rather, it is rooted in historical pretences about the exercise of foreign powers. The treaties do not provide any explicit elaboration for where the CFSP begins and ends. For balance of powers concerns, given the differing role of institutions for the CFSP, this poses a particular challenge. This puts the Council at an immediate advantage against other relevant actors, solidifying the protective habits of the Council from other fears of institutional encroachment. The Council has ambitious plans for how to execute EU foreign policy and this ambitiousness, coupled and supported by the external objectives of the EU as set out in Article 21 TEU, requires sufficient flexibility. There are no longer specific policy objectives attached solely to the CFSP; instead, there is but mere external objectives of the EU – encompassing matters relating to both the CFSP and other nonCFSP external relations. The most recently revision of the treaties by the Lisbon Treaty was positive news for the Council in terms of EU foreign policy being re-asserted as a policy that is subject to executive command. That said, it also led to the establishment of the European External Action Service (EEAS)26 as an implementation body outside of the Council, similar to the Committee of Permanent Representatives (COREPER), albeit COREPER being a part of the Council.27 The voting rules for the CFSP are located in Article 31 TEU. The default option, as it has always been, is that unanimity amongst Member States is needed in order to facilitate a Decision. However, there are certain exceptions to this. Firstly, there is the possibility to appoint Special Representatives for thematic or regional issues through qualified majority voting (QMV),28 despite the practice being that they are appointed unanimously. Second, there is the possibility for constructive abstention of Member States in order for the non-adoption of Decisions to be prevented.29 And, third, there

26 See B van Vooren, ‘A Legal-Institutional Perspective on the European External Action Service’ (2011) 48 Common Market Law Review 475. 27 Case C-25/94 Commission of the European Communities v Council of the European Union [1996] ECLI:EU:C:1996:114, para 26. 28 Articles 31(2) and 33 TEU. 29 ibid art 31(2).

270  Graham Butler is the possibility to move specific areas of CFSP decision-making to QMV through the passerelle clause.30 Organisationally, with respect to voting and decision-making, the Council has become a more multi-faceted institution over time. Its various sub-bodies make it near-impossible to fully map, but most CFSP legal acts are formulated in the sub-bodies – mainly the Political and Security Committee (PSC) and its superior COREPER. The Lisbon Treaty also brought the President of the European Council into the picture. Article 15(6) TEU states that the officeholder shall ‘ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative’. More generally, Article 22(1) TEU states that the European Council shall ‘identify the strategic interests and objectives of the Union’, with respect to EU external action, regardless of whether they are related to the CFSP or are in fact non-CFSP matters. On the basis of Article 18(2) TEU, the High Representative conducts and executes the CFSP, and is supported by the newly formed EEAS, which has altered the playing field of EU foreign policy. Whilst the EEAS supports the tasks of the High Representative, there are many treaty-mandated responsibilities that are not so conferred upon other individual members of the Commission. With the establishment of the EEAS, a body sitting somewhere between the Commission and the Council, its location is quite unusual. The EEAS in not an institution, but rather a body with its own legal basis,31 and allowed the EP a say in its establishment on a CFSP Decision – an unusual situation in itself. When the EEAS was being established, the EP wanted it connected as closely as possible to the Commission. This would then result in the EP having greater oversight and involvement in what the EEAS does, which is handling and managing the CFSP.32 Despite the EP being involved in the establishment of the EEAS, the treaties do not follow this up with its close involvement once it was to be operationalised. The establishment of the EEAS demonstrates what could be considered a move towards a more balanced structure of institutional relations in the CFSP, despite it continually being at odds with other areas. However, the EEAS has no formal decision-making powers conferred upon it by the treaties in its own right, and all that EU primary law allows for is that it is merely to exist.33 Any power that the EEAS does exercise is implementing the Decisions of the Council. It is answerable to the High Representative, but its existence owes itself to being a balancing act between institutions. The administrative relationship between the Council and the Commission for EU foreign policy was always ambiguous,34 and this, by analogy, has not gotten any easier now that the EEAS is in the frame. 30 ibid art 31(2) and (3). 31 ibid art 27(3) TEU: ‘In fulfilling his mandate, the High Representative shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. The organisation and functioning of the European External Action Service shall be established by a decision of the Council. The Council shall act on a proposal from the High Representative after consulting the European Parliament and after obtaining the consent of the Commission.’ 32 K Raube, ‘The European External Action Service and the European Parliament’ (2012) 7 The Hague Journal of Diplomacy 65. 33 Article 27(3) TEU. 34 I Pernice and D Thym, ‘A New Institutional Balance for European Foreign Policy?’ (2002) 7 European Foreign Affairs Review 369, 389.

The Balance of Powers and the EU’s Common Foreign and Security Policy  271 The High Representative wears a number of different hats at any given time and there are many tasks that are conferred upon the office holder: first, he or she is a member of the Commission; secondly, he or she leads the EEAS; third, he or she ‘shall take part’ in the work of the European Council;35 fourth, he or she shall chair the Foreign Affairs Committee (FAC) of the Council; and, fifth, he or she is also the Head of the European Defence Agency (EDA). The sheer breadth that the role spans, crossing the three institutions of the Commission, the European Council and the Council, as well as one quasi-institution (the EEAS) and one EU agency (the EDA), demonstrates the impossibility of the role. As a result, not all ambitions can be achieved. To improve the EEAS’s sitting within the structure of EU foreign policy, the decision establishing the EEAS allowed for the ability for the EEAS to enter into service-level agreements with other EU legal actors.36 Whilst the EEAS is unlikely to ever be made an institution in itself on a par with the Council or the Commission, it may one day, regardless of its success or failure, have to be re-apportioned elsewhere within the balance of powers in either one of the two institutions.

IV.  Parliamentary Power and the CFSP The EP has developed as an institution with its own struggle and quest for greater involvement in EU affairs. Thus, one does not have to a parliamentary specialist to realise or understand that the EP resents the fact that the CFSP is decided without it. From the transition of having EU foreign policy come within the scope of EU law and the EU institutional structure, the EP had apprehensions on how the incorporation would work. It was noted around the time of the Single European Act that ‘practices and procedures … in the context of European Political Cooperation’ meant that it had ‘serious doubts … over the separation between [EU] activity and political cooperation’.37 The EP has long held the ideal that all activity within the ambit of the EU is to be within the EP’s remit, as it has its own self-image of it as the sole provider of democracy within the EU legal system. If any institution has seen a greater acquisition of powers and competence in recent decades, that would be the EP. In contrast to the Council, the EP has supranational intuition.38 An enhanced role for the EP in the policies of the EU has long been predicted;39 however, any assumption that the rise of the EP would lead it to having similar powers in all areas of EU policies would have been misplaced. Through strategic actions and clever litigation to bring about greater prerogatives for itself, the EP has acquired grander legal powers

35 Article 15(2) TEU. 36 Council Decision of 26 July 2010 Establishing the Organisation and Functioning of the European External Action Service (2010/427/EU) [2010] OJ L201/30,. art 3(3): ‘The EEAS may enter into service-level arrangements with relevant services of the General Secretariat of the Council, the Commission, or other offices or interinstitutional bodies of the Union.’ Note that service level agreements are not the same as inter-institutional agreements, since the EEAS is not an institution. 37 ‘European Parliament Resolution A2-169/86 on the Single European Act’ (1986) C 7/108. 38 See R Corbett, F Jacobs and D Neville, The European Parliament, 9th edn (London, John Harper Publishing, 2016). 39 G Bebr, Development of Judicial Control of the European Communities (Leiden, Martinus Nijhoff Publishers, 1981) 466.

272  Graham Butler to influence and formally involve itself in all EU policies. Yet an assumed forgone conclusion that the EP would be given powers in the EU’s foreign policy has not manifested itself. This is due to the treaties continuing to attempt to ensure that formal decision-making for the CFSP is retained in the Council, having an exclusionary effect on all other institutional actors. Ordinarily for EU policies that are not the CFSP, the EP will use its influence as one branch of the EU legislature to shape EU law through its wielding of decision-making powers for internal legislation or the power of consent for international agreements on a non-CFSP legal basis. Looking to the EP as a component of the EU legislature in the CFSP might seem unusual, given that the CFSP is non-legislative in its nature.40 The treaties have not fully streamlined the role of the EP, for its powers across the EU legal order still vary and in many instances are diluted. The Lisbon Treaty promised much for improved balance of powers to correct existing forms of (im)balance, and it greatly increased the EP’s power in EU policies, with the exception of the CFSP, where the reforms were much more minimal. Thus, the depillarisation of the EU was no heyday for the EP. Rather, due to the re-alignment of EU legal acts, the depillarisation was much more subdued. Therefore, on a superficial reading of the treaties, it would appear that the EP in the CFSP is confined to relatively minor matters – information, opinion and debate. Absent from this dynamic is the role of any form of decision-making. As a result, the EP is but a classic protagonist, and inquisitor. Yet, whilst it provides some political control in the CFSP, this should not be confused with legal control. The powers of the EP stemming from Article 14 TEU apply across the treaties, ensuring that it ‘shall exercise functions of political control and consultation’. From this, it derives a number of different functions, namely, supervisory, budgetary and legislative powers. In traditional political entities, it is assumed that the function of parliamentary bodies is to have decision-making and budgetary powers that it can exercise. But the High Contracting Parties have never cared much for this traditional viewpoint, for they specifically derogate the role of the EP. For the CFSP, Article 24 TEU states that ‘[t]he specific role of the … Parliament … in this area is defined by the Treaties’, implying that the broad sweep of parliamentary power based on Article 14 TEU does not apply to the CFSP. Moreover, with the EP coming from the perspective of weak institutional standing, its lack of power to even plead cases before the Court in times gone by has been denied, thus denting its ability to contribute to how the external relations of the EU evolved.41 From the days when the EP first had direct elections, a concerted internal effort was under way to gather momentum on greater parliamentary powers, informal or otherwise, for the institution.42 It has pursued a dual strategy of etching out concessions in practice vis-a-vis other institutions, and also, where necessary, litigation before the Court to ensure that its institutional position was respected.

40 Article 24(1) TEU: ‘The adoption of legislative acts shall be excluded.’ Article 16(8) TEU also provides a legal basis for the Council to perform ‘non-legislative activities’. 41 K St C Bradley, ‘Maintaining the Balance: The Role of the Court of Justice in Defining the Institutional Position of the European Parliament’ (1987) 24 Common Market Law Review 41 63–64. 42 See JHH Weiler, ‘The European Parliament and Foreign Affairs: External Relations of the European Economic Community’ in A Cassese (ed), Parliamentary Control Over Foreign Policy: Legal Essays (Alphen aan den Rijn, Sijtoff and Noordhoff, 1980).

The Balance of Powers and the EU’s Common Foreign and Security Policy  273 Given the (im)balance of powers for the CFSP, the policy field automatically marks itself out for a field that can be prone to inter-institutional disputes and litigation. However, in most cases when the EP litigates, it only does so because its treaty-mandated prerogatives have been encroached upon.43 The power of the EP to file cases at the Court was not initially provided by the treaties, and such powers were once deemed to be only of ‘theoretical interest’.44 The EP in former times was snapping away at its limited powers on general issues, which it supported in third-party actions before the Court.45 In the past decade, inter-institutional litigation with respect to the CFSP can be explained by the need to tease out the new provisions of the Lisbon Treaty. Such disputes eloquently demonstrate the institutions’ differing positions with respect to the onus conferred upon them with respect to their obligations vis-a-vis other actors. Pre-Lisbon, the most notable case trying to alter the balance of powers in the CFSP was ECOWAS.46 Whilst the EP did not initiate the case itself, it did intervene in support of the Commission. At issue was the adoption of a Council Decision47 implementing a previously agreed Joint Action,48 and the whether the Council had erred in its choice of legal basis. The Commission and the EP had contended that the Cotonou Agreement provided for such action49 and was thus a matter for development cooperation. This policy field has always had the potential for encroachment into other policy domains,50 but, nonetheless, it was possible for it to encompass marginal elements of other policies.51 The pre-Lisbon treaties stated that ‘nothing in [the TEU] shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them’.52 Read one way, it would ‘preserve the integrity of the [EU] legal order’ that was guaranteed by the TFEU.53 Therefore, it had to be found that one legal basis was best suited to

43 K St C Bradley, ‘The European Parliament and the European Court: Litigation and Other Interactions’ in E Guinchard and M-P Granger (eds), The New EU Judiciary: An Analysis of Current Judicial Reforms (Dordrecht, Kluwer Law International, 2017) 242. 44 E Stein, ‘The New Institutions’ in E Stein and TL Nicholson (eds), American Enterprise in the European Common Market: A Legal Profile, vol 1 (Ann Arbor, University of Michigan Press, 1960) 65. 45 For example, the EP in favour of the applicants in both Case C-138/79 SA Roquette Frères v Council of the European Communities [1980] ECLI:EU:C:1980:249 and Case C-139/79, Maizena GmbH v Council of the European Communities [1980] ECLI:EU:C:1980:250. 46 Case C-91/05 Commission v Council (‘ECOWAS’ or ‘Small Arms and Light Weapons’) ECLI:EU:C:2008:288. 47 Council Decision 2004/833/CFSP of 2 December 2004 Implementing Joint Action 2002/589/CFSP with a View to a European Union Contribution to ECOWAS in the Framework of the Moratorium on Small Arms and Light Weapons [2004] OJ L359/65. 48 Council Joint Action 2002/589/CFSP of 12 July 2002 on the European Union’s Contribution to Combating the Destabilising Accumulation and Spread of Small Arms and Light Weapons and Repealing Joint Action 1999/34/ CFSP L 191/1. 49 Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States of the One Part, and the European Community and Its Member States, of the Other Part, Signed in Cotonou on 23 June 2000 [2000] OJ L317/3. Namely, art 11 (‘Peace-building policies, conflict prevention and resolution’). 50 See M Broberg, ‘EU Development Cooperation and the CFSP: Mutual Encroachment?’ in S Blockmans and P Koutrakos (eds), Research Handbook on the EU’s Common Foreign and Security Policy (Cheltenham, Edward Elgar, 2018). 51 See R Schütze, ‘EU Development Policy: Constitutional and Legislative Foundation(s)’ in C Barnard et al (eds), Cambridge Yearbook of European Legal Studies 2012–2013, vol 15 (Oxford, Hart Publishing, 2013). 52 Article 47 TEU, pre-Lisbon. 53 A Dashwood, ‘Article 47 TEU and the Relationship between First and Second Pillar Competences’ in A Dashwood and M Maresceau (eds), Law and Practice of EU External Relations: Salient Features of a Changing Landscape (Cambridge, Cambridge University Press, 2008) 70.

274  Graham Butler external action, and for balance of powers reasons, it mattered whether this was the CFSP or development cooperation. Ultimately, the Court found that ‘recourse to a legal basis falling within the CFSP in order to adopt provisions which also fall within a competence conferred by the [TFEU]’ cannot be done54 and thus annulled the Council Decision – a victory for the Commission and the EP. However, this victory was to be short-lived, as the Lisbon Treaty shortly after no longer expressed a preference for a legal basis to be found in the TFEU; instead, it equalled the hierarchy by levelling the TEU and the TFEU. As put by the Lisbon Treaty, ‘[t]he implementation of the [CFSP] shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences [in] the [TFEU]’ and ‘[s]imilarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under [the CFSP]’.55 This provision, post-Lisbon, would empower the Court to police the boundary between the CFSP and other EU policies. Thus, further litigation to determine the balance of powers after the entering into force of the Lisbon Treaty was inevitable. Post-Lisbon, the Smart Sanctions judgment was hugely disappointing for anyone who believed that the reformed treaties were going to be a turning point for the EP with respect to the CFSP in terms of attempting to induce a balance of powers equation into the CFSP. In it, the Court rejected the EP’s plea that its involvement should be mandated because the actions entailed ‘imping[ing] directly on the fundamental rights of individuals and groups’.56 This rejection by the Court was in part due to the fact that the EU Charter of Fundamental Rights was applicable57 and, accordingly, the Court did not take up the case that the EP had a right of involvement; rather, it merely centred on the focus that Article 215 TFEU was the correct legal basis, and not Article 75 TFEU as the EP had claimed. Strikingly, the Court said that ‘so far as the Parliament’s involvement is concerned’ in the CFSP, it ‘is the result of the choice made by the framers of the Treaty of Lisbon conferring a more limited role on the Parliament with regard to the Union’s action under the CFSP’58 and nothing more. The Lisbon Treaty also meant alterations for the High Representative who executes the CFSP. The role falls between two institutions – the Council and the Commission – and has to deal with the EP. In previous times, the High Representative was appointed unanimously by the Council alone,59 without the need for the involvement of the EP. This is no longer the case, given that post-Lisbon, the office holder is a member of the Commission. Today, the High Representative is appointed by the European Council acting by QMV, with

54 ECOWAS (n 46) para 77. 55 Article 40 TEU, post-Lisbon (ex-art 47 TEU). 56 Case C-130/10 Parliament v Council (‘Smart Sanctions’) ECLI:EU:C:2012:472, para 83. 57 Article 51(1) of the EU Charter of Fundamental Rights: ‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.’ 58 Smart Sanctions (n 56) para 82. 59 The then art 207(2) EC.

The Balance of Powers and the EU’s Common Foreign and Security Policy  275 the agreement of the President of the Commission60 and consent of the EP.61 Therefore, the EP, prior to the formal appointment of the High Representative, can engage with the nominee who will lead the CFSP, but can only consent to his or her appointment on the basis of his or her membership of the Commission as a whole. Individual vetoing of individual Commissioners is not provided for in the treaties. That said, the EP has the possibility to politically threaten to invoke the veto on the proposed Commission as a whole if a candidate is manifestly unsuitable or unqualified for the position. However, in the case of the Commission being censured by the EP, the High Representative would remain in place and would only relinquish his or her role as a member of the Commission.62 For Special Representatives of the EU, the approval of the Council is applied (albeit on the basis of QMV),63 but without any say or designated role for the EP.64 Once a High Representative is appointed, the Article 36 TEU provision underpins a form of a consultation dialogue between the High Representative and the EP.65 This Article 36 TEU facility has high levels of symbolism attached to it, but its wording concerns the ‘main aspects’ and ‘basic choices’ of the CFSP. Such phrases do not lend themselves to seeing close relations between the EP and the policy area, but rather imply a level of distance. The contrary view would be that, more broadly, the EP would be situated close to the CFSP, without being a decision-maker in any way. Moreover, Article 36 TEU does not explicitly provide any form of policy for ensuring that the EP’s concerns are heard on individual CFSP matters; instead, the framework for the dialogue is with respect to the CFSP as a whole. Going back in time, the very interpretation of how the EP’s right to be entrusted with information flowing from Article 36 TEU was not always clear. On the one hand, there was the EP seeking to be provided with information on the direction (future) of EU foreign policy, whereas on the other hand, there was the Council wishing for it to be a more reflective (past) exchange. Built upon Article 36 TEU, the inter-institutional agreement of 201366 provides that the High Representative provides the EP with a forward-looking statement for the CFSP. Delivered annually,67 it is now considered prospective, whereas in former years it was merely considered retrospective. It was via a budgetary-focused inter-institutional

60 Article 18(1) TEU. 61 ibid art 17(7), third paragraph: ‘The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.’ 62 ibid art 18(8). 63 ibid art 31(2). 64 ibid art 33. 65 ibid art 36: ‘The High Representative of the Union for Foreign Affairs and Security Policy shall regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy and inform it of how those policies evolve. He shall ensure that the views of the European Parliament are duly taken into consideration. Special representatives may be involved in briefing the European Parliament.’ 66 Inter-institutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on Budgetary Discipline, on Cooperation in Budgetary Matters and on Sound Financial Management [2013] OJ C373/1. 67 The most recent annual report is ‘CFSP Report – Our Priorities in 2018. From: High Representative of the European Union for Foreign Affairs and Security Policy to the Political and Security Committee (PSC) (10766/18)’ (Council of the European Union, 2018) 10766/18.

276  Graham Butler agreement through the ‘power of the purse’68 power held by the EP which clarified that Article 36 TEU engagement was indeed to focus on the future.69 The EP’s budgetary competence has not been its trump card, but it is an area where it does have some power compared to its absence in decision-making. Under former treaty arrangements, the EP interpreted its limited budgetary powers is an expansive manner, leading to the Council and the EP coming to opposite conclusions on what was meant by ‘important budgetary implications’ (emphasis added).70 For the Council, it believed that mere consultation with the EP was sufficient, whereas the EP believed that its consent was needed. In one case, such a dispute between the two institutions was fought out before the Court, which came to the conclusion that ‘the [international] agreement … did not have important budgetary implications for the [EU]’.71 Despite the existence of the EP’s budgetary powers, which includes financing for the CFSP, it has not led to ever more rights on the basis of this power alone; rather, modest informational rights have been afforded through inter-institutional dialogue. For example, since the late 1990s, a CFSP Decision that would lead to expenditure from the EU budget will lead to the EP immediately being informed of the costs.72 Post-Lisbon, the landscape with respect to international agreements on a CFSP legal basis and a non-CFSP legal basis has changed quite dramatically, particularly with regard to the conclusion of such international agreements. The conclusion of such is now governed by Article 218 TFEU for both types of international agreements. However, this was not always so, as pre-Lisbon, the CFSP had its own legal basis for concluding international agreements on a CFSP legal basis.73 Today, the CFSP provisions in the treaties – Articles 23–46 TEU – entail a treaty power on the EU, separate from the general treaty power contained in Article 216 TFEU, but the process for the conclusion of international agreements for the CFSP and for non-CFSP matters is united in Article 218 TFEU, for which they share some common provisions, but not all. International agreements and the conclusion thereof have long sought to bring about a balance of powers.74 For international agreements on a CFSP legal basis, it is the Council, the High Representative and the EEAS that negotiate on behalf of the EU.75 For international 68 Coined in the context of the US Congress and the Federal Government of the United States. See RF Fenno Jr, The Power of the Purse: Appropriations Politics in Congress (Boston, Little, Brown and Company, 1966). 69 ‘Inter-institutional Agreement of 17 May 2006 between the European Parliament, the Council and the Commission on Budgetary Discipline and Sound Financial Management [2006] OJ C139/1, in particular art 43 thereof. 70 This term is still located in art 218(6)(a)(iv) TFEU. 71 Case C-189/97 Parliament v Council (‘EU/Mauritania Fisheries Agreement’) [1999] ECLI:EU:C:1999:366, para 33. 72 ‘Whenever it adopts a decision in the field of CFSP entailing expenditure, the Council will immediately and in each case send the European Parliament an estimate of the costs envisaged (“financial statement”), in particular those regarding time-frame, staff employed, use of premises and other infrastructure, transport facilities, training requirements and security arrangements.’ Interinstitutional Agreement of 6 May 1999 between the European Parliament, the Council and the Commission on Budgetary Discipline and Improvement of the Budgetary Procedure [1999] OJ C172/1, para 40. 73 Formally art 24 TEU. For an overview, see S Marquardt, ‘The Conclusion of International Agreements under Article 24 of the Treaty on European Union’ in Vincent Kronenberger (ed), The European Union and the International Legal Order: Discord or Harmony? (The Hague, TMC Asser Press, 2001). 74 Case C-327/91 France v Commission [1994] ECLI:EU:C:1994:305, para 28. 75 Article 218(3) TFEU: ‘The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team.’

The Balance of Powers and the EU’s Common Foreign and Security Policy  277 agreements on a non-CFSP legal basis, the Commission negotiates on behalf of the EU. In the broader sphere of EU policies, taken as a whole, this exposes the potential for incoherence. However, depending on the substance of international agreements and whether they are related to the CFSP or not, Article 218(6) TFEU makes a distinction between the consent of the EP and the consultation of the EP. As per the Court in Australia ETS, it can be said that Article 218 TFEU as a whole was created with a view to ensuring ‘a balance between … institutions’.76 However, read more strictly, Article 218 TFEU excludes the EP from the conclusion of international agreements on a CFSP legal basis. The distribution of powers is implicated by the chosen legal basis for the execution of certain EU foreign policy actions. Post-Lisbon, after Smart Sanctions, the EP made further attempts at litigation by trying to prise open the indistinct legal boundary between the CFSP and non-CFSP matters. Case taken by the EP to the Court, particularly the Mauritius and Tanzania cases,77 have honed in on balance of powers argumentation. Both cases concerned the nature of the international agreements entered into between the EU and third entities on the basis of Article 37 TEU.78 Given the legal basis of the proposed agreements – a CFSP legal basis – the Council concluded them alone. The international agreements in question79 were to facilitate arrangements for the transfer of pirates captured under an EU military mission, Operation Atalanta.80 In both cases, the EP (supported by the Commission) claimed the pirate transfer agreement that the Council had concluded on behalf of the EU was not a matter exclusively related to the CFSP, but also encompassed non-CFSP matters, namely, criminal matters, police cooperation and development cooperation. On substantive grounds in both cases, the Court gave the Council significant victories by vindicating the institution’s right to conclude international agreements on a CFSP legal basis where the main aim of the international agreement is, in fact, a CFSP matter. In Tanzania, the Court said that the international agreement fell ‘predominantly within the scope of the CFSP, and not within the scope of judicial cooperation in criminal matters or police cooperation’.81 Again, like Smart Sanctions, both the Mauritius and Tanzania judgments demonstrated some limits of litigation.

76 Case C-425/13 Commission v Council [2015] ECLI:EU:C:2015:483, para 62. 77 Case C-658/11 Parliament v Council (‘Mauritius’) [2014] ECLI:EU:C:2014:2025; Case C-263/14 Parliament v Council (‘Tanzania’) [2016] ECLI:EU:C:2016:435. 78 Article 37 TEU: ‘The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.’ 79 With respect to Mauritius, Council Decision 2011/640/CFSP of 12 July 2011 on the Signing and Conclusion of the Agreement between the European Union and the Republic of Mauritius on the Conditions of Transfer of Suspected Pirates and Associated Seized Property from the European Union-Led Naval Force to the Republic of Mauritius and on the Conditions of Suspected Pirates after Transfer [2011] L 254/1., and Tanzania, Council Decision 2014/198/CFSP of 10 March 2014 on the Signing and Conclusion of the Agreement between the European Union and the United Republic of Tanzania on the Conditions of Transfer of Suspected Pirates and Associated Seized Property from the European Union-Led Naval Force to the United Republic of Tanzania [2014] L 108/1. 80 Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union Military Operation to Contribute to the Deterrence, Prevention and Repression of Acts of Piracy and Armed Robbery off the Somali Coast [2008] L 301/33; See G Butler and M Ratcovich, ‘Operation Sophia in Uncharted Waters: European and International Law Challenges for the EU Naval Mission in the Mediterranean Sea’ (2016) 85 Nordic Journal of International Law 235. 81 Case C-263/14 Parliament v Council (‘Tanzania’) ECLI:EU:C:2016:435, para 55.

278  Graham Butler However, there was some minor success for the EP. For proposed international agreements that are to be based on a CFSP legal basis, the High Representative is charged with submitting a recommendation to the Council for the opening of negotiations with the third party to which an international agreement is envisaged. Strictly speaking, if the international agreement is ‘exclusively’ covering CFSP matters in nature, then the EP is not informed and has no right of information at this juncture. When challenged in the Mauritius case, the Court did not adopt a literal interpretation of ‘exclusively’ from Article 218(6) TFEU, but rather understood it to mean a broad encapsulation to include ‘principally’ CFSP matters in nature. In other words, the Court has interpreted the ‘[e]xcept where agreements relate exclusively’ phrase as not being literal, but rather something that is ‘predominantly’ related to the CFSP,82 seeing the non-CFSP aspects as merely incidental. As bluntly put by the Court itself, the ‘form of words [in Article 218(6) TFEU] does not, by itself, permit only one interpretation’.83 The EP is very keen on its procedural rights, both theoretically and materially. Article 218(10) TFEU demands that for international agreements on a CFSP legal basis, the EP must be ‘immediately and fully informed at all stages of the procedure’, regardless of the fact that it may have no actual decision-making powers with respect to the procedure. Accordingly, for the opening, negotiation, and concluding phases of an international agreement, Article 218(10) TFEU can imply that the EP ‘should not remain passive’,84 and thus ought to take an active part of the democratic process. A friendly institutional cooperation tone was struck in the Mauritius case by the Court in favour of the EP on this point. On Article 218(10) TFEU, the Court said that the Council violated the provision, which amounts to a breach of EU law that constitutes an ‘essential procedural requirement’,85 using the same term as contained in Article 263 TFEU, in line with the Court’s judicial review powers. Article 218(10) TFEU is therefore no tokenistic gesture and is fully applicable to international agreements on a CFSP legal basis. In light of the specific institutional arrangements for the CFSP, the Court has interpreted that democracy can still play a role by reinforcing its informational rights, and that the provision underpins the strength and importance of the procedural provisions of international agreements and the Parliament. Article 218(10) TFEU is a simple provision and does not refer in any way to the notion of institutional cooperation or the balance of powers. Furthermore, the provision is silent on who actually provides the Parliament with information. If the EEAS is negotiating international agreements that are later to be concluded on a CFSP legal basis, it could be taking on the position that the Council is supposed to perform under Article 218(10) TFEU. The downside of Article 218(10) TFEU is that matters are presented to the EP as a fait accompli. The consequentialist reading of the dispute in Mauritius and Tanzania was that without informational rights being communicated properly as Article 218(10) TFEU mandates,

82 A P Van Der Mei, ‘EU External Relations and Internal Inter-Institutional Conflicts: The Battlefield of Article 218 TFEU’ (2016) 23 Maastricht Journal of European and Comparative Law 1051, 1064. 83 Mauritius (n 77) para 49. 84 R Passos, ‘The External Powers of the European Parliament’ in P Eeckhout and M López-Escudero (eds), The European Union’s External Action in Times of Crisis (Oxford, Hart Publishing, 2016) 125. 85 Mauritius (n 77) para 80.

The Balance of Powers and the EU’s Common Foreign and Security Policy  279 the EP would be unable to raise subsequent doubts about the choice of legal basis by the Council in an ex ante situation86 or even in an ex post scenario. Interpretation is how one gets there. In Tanzania, in justifying the EP’s procedural right to information, the Court took a broad-brush approach that was akin to its declaration in Chernobyl,87 recalling its Roquette Frères notion of ‘the exercise of power through the intermediary of a representative assembly’. Thus, for international agreements, on informational rights, the EP’s rights have been proven strong, regardless of content on the legal basis of the international agreement. Access for information and broader transparency practices from the Council are solid grounds upon which the Parliament can build upon, and the Court has the power to ‘strike down [legal acts] not sanctified with even a whiff of democratic legitimacy’.88 The two judgments in Mauritius and Tanzania have managed to strike a fine balance between the institutions when it has come to inter-institutional disputes on international agreements concluded on a CFSP legal basis. The Court has been granted the aforementioned policing power under Article 40 TEU to ensure that the mutual non-encroachment of matters related to the CFSP do not become non-CFSP matters, and vice versa. Despite the fact that Article 40 TEU lays the basis for the Court to ensure this mutual non-encroachment when it is asked, it has been silent when given the opportunity, and the issue was not broached in a meaningful way in either Mauritius or Tanzania. However, this silence does not bind the future, and Article 40 TEU may, in future cases, be an effective means of keeping the Council’s executive power in check. It is a powerful tool to empower the Court to decide the true objective of specific types of EU foreign policy and whether it falls into the Council’s domain of the CFSP or not. Equally, however, it has been articulated that litigating in order to strike the right balance of powers is the wrong approach to solving any such assertions of (im)balance;89 for that, the better means for treaty-making would be to increase the efficiency of the inter-institutional process. Rightly, the Court’s role will continue, but will not lead to any major (re)balancing of the (im)balance.

V.  Fine-Tuning the Balance of Powers European integration is a slow process. Political convergence moves at the same pace, with the balance of powers playing catch-up. The CFSP, like other policy fields, has lingering issues cutting across institutional paradigms and technical coherence. The true certainty of the legal character of CFSP legal acts still leave many unanswered questions, but the context of EU policies and the balance of powers system are not a mutually exclusive

86 For example, through the Opinion procedure in art 218(11) TFEU. See G Butler, ‘Pre-ratification Judicial Review of International Agreements to Be Concluded by the European Union’ in M Derlén and J Lindholm (eds), The Court of Justice of the European Union: Multidisciplinary Perspectives (Oxford, Hart Publishing, 2018). 87 The Chernobyl judgment was ‘a creative way of underlining that institutional balance was fundamental for a functioning Union’. See Butler (n 1) ch 4; Case C-70/88 Parliament v Council (‘Chernobyl’) ECLI:EU:C:1991:373. 88 G Federico Mancini and DT Keeling, ‘Democracy and the European Court of Justice’ (1994) 57 Modern Law Review 175, 179. 89 See P Koutrakos, ‘Institutional Balance and Sincere Cooperation in Treaty-Making under EU Law’ (2019) 68 International and Comparative Law Quarterly 1.

280  Graham Butler operation; rather, they intertwine. EU foreign policy is not so exceptional to warrant the current (im)balance. Reasoning for keeping parliaments out of foreign policy issues is ‘much less persuasive today than several hundred years ago’.90 Democratisation of the EU has been growing, but yet the CFSP has been left behind by various waves of change. The rationale for greater inclusion of the other half of the EU legislature is to add an element of legitimation to EU foreign policy, just like it does in other policy fields. Naturally, the optimum allocation of the balance of powers depends on a given perspective and on the specific policy field in question. It has had abstract notions of what it is to mean, but it is certainly not to be understood as applying to all areas of EU law equally. Despite the adoption of some legal acts leading to the inclusion of the EP, this approach has not always been warranted and has been questioned. In fact, an approach towards including the EP has ‘no basis’ in the treaties,91 given that ‘[d]emocracy can take a number of different forms’ and that executive performance (and dominance) is not, in itself, a negative trait. To say there is an (im)balance of powers for the CFSP is an understatement and can be seen as an internal institutional pressure point.92 The role of national parliaments in the CFSP is largely absent and uneven,93 despite the spirited attempts at forging interparliamentary cooperation on the CFSP and the Common Security and Defence Policy (CSDP).94 Accordingly, the balance of powers works differently for the CFSP, in that it is not really concerned about the balance of powers in a wider sense at all as much as it is about the balance between EU Member States. The unanimity needed within the Council is ‘unhealthy, for it ignores the element of political solidarity’.95 Fine-tuning the balance of powers in EU foreign policy is an imperative. Changes to the balance of powers are slow, piecemeal and exhausting, and no model of separation of powers is by any means perfect. Yet, it remains an ideal to be strived for.96 Foreign policy might be passed off by certain executive interests as being firmly based as key to Member States’ interests. However, the potential in the future for increasing the use of QMV in the CFSP through the activation of the passerelle clause demonstrates that this is no longer fully true,97 and thus Member States do entertain a debate and future discussion about surrendering their long-held national veto on certain EU foreign policy decisions.

90 R Schütze, Foreign Affairs and the EU Constitution: Selected Essays (Cambridge, Cambridge University Press, 2014) 360. 91 Case C-411/06 Commission v Parliament and Council (‘Basel Convention’) ECLI:EU:C:2009:189, Opinion of AG Maduro, para 6 and accompanying footnotes. 92 RA Wessel, ‘Integration and Constitutionalisation in EU Foreign and Security Policy’ in R Schütze (ed), Globalisation and Governance: International Problems, European Solutions (Cambridge, Cambridge University Press, 2018) 351–56. 93 For a broader analysis on the deficiencies of national parliaments in the process of European integration, see D Fromage, Changing Parliaments in a Changing European Union: The Role of National Legislatures in Larger Member States (Oxford, Hart Publishing, 2021). 94 See G Butler, ‘The Interparliamentary Conference on the CFSP/CSDP: A New Forum for the Oireachtas in Irish and EU Foreign Policy?’ (2015) 26 Irish Studies in International Affairs 163. 95 P Koutrakos, ‘Common Foreign and Security Policy: Looking Back, Thinking Forward’ in M Dougan and S Currie (eds), 50 Years of the European Treaties: Looking Back and Thinking Forward (Oxford, Hart Publishing, 2009) 162. 96 PJ Kuijper, ‘Recent Tendencies in the Separation of Powers in EU Foreign Relations: An Essay’ in E Neframi and M Gatti (eds), Constitutional Issues of EU External Relations Law (Baden Baden, Nomos, 2018) 201. 97 See Butler (n 1) ch 7.

The Balance of Powers and the EU’s Common Foreign and Security Policy  281 This will have the effect of EU foreign policy leaning in the direction of a more supranational decision-making, and once this is more the norm and accepted, it would follow that altering the institutional structure to cater for an improved balance of powers in EU foreign policy is an imperative. When it comes to the law of integration, the CFSP has been a lesser part of the overall story. The existing framework of dividing EU external action between CFSP and non-CFSP matters will not be able to survive in perpetuity. Having the CFSP possessing non-legislative character is beginning to look increasingly out of kilter, for it appears as if the CFSP is still structured in the treaties as though it is the early 1990s. What this exact change is will have to be decided in a future political process. That said, the CFSP is progressively seen to be becoming part of the integrated EU structures. In law, the balance of powers has largely been tipping in favour of reducing the strong intergovernmentalist instincts of the Member States in the Council, and has evolved into an acceptance of more autonomy and powers for other institutions, namely, the Commission, the EP and the Court. One reason for this change has been to improve legitimacy, but also to rectify clear deficiencies in governance arrangements. In prior times, the furtherance of the EP’s institutional status vis-a-vis the Council and the Commission was warranted on such grounds. This is no longer the situation in the current legal environment, given the broader improvement to the (im)balance of powers, but more can be done. The CFSP is demonstrative of the wider battle within Europe – progress or the maintenance of the status quo. The claims for rectifying (im)balance of powers strike right at the heart of the constitutional specificity of the CFSP when it is the Council that holds the simple view when it comes to foreign policy – ‘hands-off for the legislative power and the judiciary’.98 This concentration of power has been at the behest of the EP. In light of the aforementioned strides of the EP, whilst there has been progress in the EP’s institutional standing in EU foreign policy, it has by no means been conferred the big prize – that of being a co-legislator like it is in other policy fields. Incremental change is the best that the EP has been able to achieve. The CFSP could have an inter-institutional approach with institutional cooperation, thereby putting the full weight of the EU into its overall foreign policy. Regrettably, this has not occurred, and the monopolistic tendencies of the Council have permeated on what is now a settled constitutional arrangement for the foreseeable future. Changes to the institutional allocation of powers have now, under the current primary law framework, been exhausted, and another treaty change will thus be necessary to correct the existing deficiencies. Overall, a slow phased shift to correcting the attributed (im)balance is evident, but principally through amendments of the treaties and, to a lesser extent, through informal processes.99 The institutional arrangements for the CFSP have been a feeble arrangement that results in continued executive dominance by the Council. As it stands for EU foreign policy, the EP is powerless to prevent the Council from adopting Decisions and has no way to find that the Council has actually violated any of the EP’s particular political preferences. All it can

98 Kuijper (n 9) 95. 99 For the political science perspective, see G Rosén and K Raube, ‘Influence Beyond Formal Powers: The Parliamentarisation of European Union Security Policy’ (2018) 20 British Journal of Politics and International Relations 69.

282  Graham Butler do is ensure that it stays within the bounds of the law. The EP is still navigating through a policy field that has typically been subject to executive dominance. From an institutional perspective, this in turn leaves the CFSP without a suitable long-term settlement. The EP’s consistent thirst for additional powers can certainly at times be seen as a ‘distortion of the [t]reaties’.100 The frankest expression of further powers for the EP has been for additional parliamentary powers to be conferred by ‘the peoples of Europe … through treaty amendment’.101 Inevitably, there is the view that the CFSP should remain an instrument of the Council, without any further institutional involvement.102 Moreover, it has been argued elsewhere that the special institutional arrangements for the CFSP do not contradict the overall institutional system of the EU,103 thereby suggesting the (im)balance is justified. Rather, it can be claimed that the manner in which the CFSP operates is but a mere ‘sectorspecific adaptation’ that is able to be modified.104 Yet, a politically unchecked institution such as the Council does not bode well for an EU that claims to be based upon the rule of law. In the absence of future treaty amendment, the EP will continue to try to penetrate the Council’s hold on the CFSP for as long as the special policy domain exists. Whatever does occur, the status quo is not tenable in the longer term.

VI. Conclusion Substantive reforms to specifically alleviate such recognised problems with the balance of powers have not yet been undertaken – not even by the Lisbon Treaty. The very existence of Europe and its multi-level governance and decision-making architecture means that a pan-European policy with a real balance of powers is perfectly possible. A balance of powers across the EU for all policies is not the norm, and there is no clear legal intention for it to be this way. The EP’s quest for a more effective balance of powers has not always been successful. As has been said, ‘one-way traffic in favour of the … Parliament’ has not been the case.105 At the very least, the future must hold that the EP’s consent power for international agreements on a non-CFSP legal basis ought to be extended to international agreements on a CFSP legal basis if the legal area of the CFSP is to be maintained. From the perspective of the Council, constant efforts are undertaken to future safeguard its executive prerogatives in the law of EU foreign policy. This is because the Council believes it will forever have the divine right to control, through CFSP legal acts, the law of EU foreign policy within the general scheme of the treaties.

100 JC Piris, The Future of Europe: Towards a Two-Speed EU? (Cambridge, Cambridge University Press, 2012) 31. 101 Basel Convention (n 91) Opinion of AG Maduro, para 6 and accompanying footnotes. 102 A Dashwood, ‘The Institutional Framework and the Institutional Balance’ in Dougan and Currie (n 95) 12. 103 D Thym, ‘Parliamentary Involvement in European International Relations’ in M Cremona and B De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 20. 104 D Thym, ‘Beyond Parliament’s Reach? The Role of the European Parliament in the CFSP’ (2006) 11 European Foreign Affairs Review 109, 124. 105 S Prechal, ‘Institutional Balance: A Fragile Principle with Uncertain Contents’ in T Heukels, N Blokker and M Brus (eds), The European Union after Amsterdam: A Legal Analysis (Dordrecht, Kluwer Law International, 1998) 278.

The Balance of Powers and the EU’s Common Foreign and Security Policy  283 There is nothing to be afraid of in adopting the EU method for decision-making when it comes to all EU foreign policy matters. In fact, a vast range of external relations matters – including trade agreements through the Common Commercial Policy (CCP) – are adopted through the EU method with a plurality of institutional actors for its execution. This came about progressively and thus can serve as guidance for how the CFSP can be dragged into the modern era. In the meantime, minor alterations to the balance of powers will occur, whereby the EP will push for levelling the (im)balance of powers within the existing treaty framework. Therefore, whilst the Lisbon Treaty did a little, it did not do a lot. Future treaty revisions will ultimately have to deal with its deficiencies.

284

16 All Buzz, No Bite The Parliamentarisation of the Area of Freedom, Security and Justice ANGELA TACEA

I. Introduction In 1975, the European Justice and Home Affairs policy area was conceived as a simple form of intergovernmental cooperation between Member States’ Ministers of Interior and of Justice within the framework of the Trevi group.1 Thereafter, it materialised with the establishment of the third pillar (intergovernmental) by the Maastricht Treaty and the creation of the Area of Freedom, Security and Justice (AFSJ)2 by the Amsterdam Treaty. The Lisbon Treaty fully aligned the AFSJ to the structures of the European Community and to its supranational procedures in place of intergovernmentalism. Title V of the of the Treaty on the Functioning of the European Union (TFEU) sets out the issues relating to the AFSJ as follows: general provisions,3 immigration and asylum,4 civil law,5 criminal law6 and policing law.7 When reading Title V TFEU, two important aspects need to be highlighted. First, the AFSJ is a hybrid policy area, where very different provisions co-exist; they are related to border control, asylum, immigration, judicial cooperation in criminal and civil law, and police cooperation. Second, the AFSJ touches closely upon the core functions of the nation state, the legitimacy of the modes of regulation of violence and the democratic control of those modes of regulation.8

1 The Trevi group was an intergovernmental cooperation structure established in 1976. It gathered the Ministers of Interior and Justice of 12 Member States of the European Community. Its main objective was to deepen the police cooperation between Member States with the aim of fighting terrorism. 2 In this chapter, the Area of Freedom, Security and Justice (AFSJ) is used when reference is made to the official policy area and ‘justice and home affairs’ is used when reference is made to the policies covered by the AFSJ. 3 Articles 67–76 TFEU. 4 ibid arts 77–80. 5 ibid art 81. 6 ibid arts 82–86. 7 ibid arts 87–89. 8 D Bigo, Europe des polices et de la sécurité intérieure (Brussels, Editions Complexes, 1992).

286  Angela Tacea Due to its ‘inter and trans-governmental forms of governance between ministerial and operational actors below the level of state representatives’,9 the decision-making process in the AFSJ has been often criticised for its lack of democratic input, accountability and transparency. Several studies pointed out that the European integration strengthened national executives and their preferred policy agenda over parliaments (both national and European), parties and courts.10 The lack of parliamentary accountability and the perceived democratic deficit of the AFSJ fed the promotion of the ‘parliamentarisation’ of this policy area. Consequently, the Lisbon Treaty strengthened both national parliaments’ scrutiny rights and the prerogatives of the European Parliament (EP) in relation to justice and home affairs policies. Indeed, most justice and home affairs issues, which were before the Lisbon Treaty subject to unanimity voting in the Council of the European Union and consultation of the EP, have been switched to the ordinary legislative procedure, where the Council and the EP have equal legislative rights. Consultation of the EP still applies for the adoption of measures on administrative cooperation in the fields of policing and criminal law, and unanimity has been retained for issues relating to passports, family law, the European Public Prosecutor (with the EP having a power of consent) and operational police cooperation (including cross-border operations). The Lisbon Treaty also reinforced national parliaments’ prerogatives in the AFSJ policy area. National parliaments can now oppose measures relating to cross-border service of judicial and extra-judicial documents.11 They are taking part in the evaluation mechanisms for the implementation of EU policies in this area and they are involved in the political monitoring of Europol and the evaluation of Eurojust’s activities.12 To strengthen their scrutiny power, national parliaments were also granted better information rights in this policy field. They are informed by Member States’ authorities of the content and results of the evaluation of the implementation of EU policies in the AFSJ13 and of the activities of the Standing Committee on Internal Security (COSI).14 Moreover, Article 6 of Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality annexed to the Treaties introduced the Early Warning System (EWS). This mechanism enables national parliaments to control the respect of the subsidiarity principle by the draft EU legislative acts and to oppose them on those grounds. There is no doubt that since the Maastricht Treaty, the parliaments of the EU have gained in power in the justice and home affairs field, and much faith has been placed in their ability to compensate the imbalance in favour of the executives that have governed this field since the beginning of the 1990s. However, to what extent is the involvement of the EP as a co-legislator and national parliaments’ scrutiny of justice and home affairs measures mirroring the new law-making framework introduced by the Lisbon Treaty? 9 S Lavenex and W Wagner, ‘Which European Public Order? Sources of Imbalance in the European Area of Freedom, Security and Justice’ (2007) 16 European Security 225. 10 A Moravcsik, Why the European Community Strengthens the State: Domestic Politics and International Institutions (Center for European Studies Working Paper Series 52, Cambridge, MA, Harvard University Press, 1994). 11 Article 81 TFEU. 12 ibid arts 85 and 88. 13 ibid art 70. 14 ibid art 71.

All Buzz, No Bite  287 Is the European system becoming less intergovernmental in the AFSJ field? Is the EP’s involvement as a co-legislator reducing the pre-eminence of Member States’ executives and democratising the AFSJ decision-making process? Are national parliaments managing to secure the democratic accountability of decisions taken in the AFSJ field? The academic literature offers only a partial answer to these questions. On the one hand, the literature on the EP’s role in the AFSJ focused mainly on the impact of co-decision on the EP’s policy positions in specific policy sub-fields, mainly in migration, asylum, data protection and counterterrorism. Authors writing on this subject have shown that the EP has shifted ‘from a vocal advocate of migrants’ rights and liberal policies’ to a more security-oriented actor, willing to cooperate with the Council in its attempt to reinforce the security aspects of AFSJ policies.15 We also know that the EP plays a more important role in the AFSJ international agreements, but these findings are based only on a few policy fields, such as data protection (PNR agreements)16 or counterterrorism (SWIFT17 and ACTA).18 Despite these findings, we still lack a global and comparative overview of the role the EP in the AFSJ. On the other hand, the role of national parliaments in the AFSJ has been a conspicuously under-studied research field. With very few exceptions,19 most studies focused on the institutional adaptation of national parliaments to EU integration in the security field. Thus, we have a limited understanding of the way in which national parliaments use their new prerogatives in one of the most sensitive areas for national sovereignty. A decade after the Lisbon Treaty, we still wonder whether the formal empowerment of the EP and of national parliaments in the AFSJ (re)calibrated executive–legislative relations in this policy area. This chapter aims to draw a global picture of the parliamentarisation of the AFSJ. First, it seeks to understand the role of the EP in the law-making procedure: how much of the AFSJ legislation is subject to co-decision procedure? How much is the EP contesting the Commission’s proposals and how does it affect legislative/non-legislative outputs? How does it negotiate? Second, the chapter aims to assess the role of national parliaments in the AFSJ. Are national parliaments active in this policy field? Do they oppose EU legislation? How is their scrutiny impacting the positions of governments in the Council? In order to do so, the chapter draws on a unique and rich dataset of all law-making procedures initiated in the AFSJ since its creation by the Amsterdam Treaty to 31 December 2017.20 15 A Ripoll Servent, ‘The European Parliament in Justice and Home Affairs: Becoming More Realistic at the Expense of Human Rights?’ in F Trauner and A Ripoll Servent (eds), The Routledge Handbook of Justice and Home Affairs Research (Abingdon, Routledge, 2018) 388. 16 Passenger Name Records Agreement. 17 Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program. 18 Anti-counterfeiting Trade Agreement. 19 DR de Garibay Ponce, ‘The Development of Interparliamentary Practices: The Case of the parliamentary Control of Europol’, thesis, Universidad Autónoma de Madrid, 2014; A Tacea, Des gouvernements sous le regard de leur parlement: la participation des parlements français, italien et britannique à l’élaboration et au contrôle des politiques européennes de justice et de sécurité intérieure (Paris, Bibliothèque constitutionnelle et de science politique, LGDJ, 2020). 20 The dataset was developed within the framework of the AFSJPolLexTrack project (www.ies.be/content/ who-wins-legislative-battle-tracing-legislative-change-and-policy-ideas-area-freedom), financed by the Fonds Wetenschappelijk Onderzoek – Vlaanderen. It contains all the elements relating to the law-making procedures between January 1998 and December 2017. The raw text data were extracted through the existing websites of the European institutions: EUR-Lex website, the EP OEIL website and the Council public register of documents. This includes dates, actors, voting results, amendments, legal basis, positions at each reading etc.

288  Angela Tacea The chapter shows that the formal parliamentary empowerment made the EP and national parliaments more active players in the AFSJ. However, despite increased parliamentary activity, national governments still dominate this policy area. The chapter constitutes a preliminary attempt to deepen our understanding of the parliamentarisation of the AFSJ policy field. It puts forward some hypotheses to explain why national governments are occupying a central place in the AFSJ, although it does not pretend to test them. The chapter is organised as follows. Section II exposes the literature on the role of the EP and of national parliaments in the AFSJ. Section III looks at how the role of the EP changed in the AFSJ decision-making procedure since the entry into force of the Lisbon Treaty and compares it to the situation pre-Lisbon. Section IV analyses the role played by national parliaments in terms of justice and home affairs. Section V concludes.

II.  Dynamics of Decision-Making and the Role of European Parliaments The AFSJ has been regarded as a particular policy field of European integration due to its rapid and comprehensive integration in the EU treaties and to its evolution from an intergovernmental framework into a communitarised policy area.21 Until 2009, the European cooperation in justice and home affairs was marked by deficits in parliamentary control. National parliaments struggled with incomplete information from their governments,22 while the opinions of the EP, which was limited to a consultative role, had no binding effect on the Council. The lack of parliamentary and judicial control of justice and home affairs policies contributed to the reinforcement of the security objectives23 of the Interior Ministers at the expense of a more balanced approach to the protection of fundamental rights. Thus, scholars have claimed that the enforcement of the prerogatives of national parliaments and the EP is desirable for two reasons: first, parliamentary involvement could reduce the democratic deficit in the AFSJ, which before the Lisbon Treaty was considered ‘one of the most pronounced and the most difficult to overcome’24 because decisions were taken following an ‘informal, low-profile and professionally dominated culture’;25 and, second, parliamentary involvement would not only contribute to the legitimation of the decision-making process, but would also balance the security-oriented rationale favoured by Home Affairs officials negotiating in Brussels.26 Thus, it was considered that the progressive communitarisation of the AFSJ between 2005 and 2009 and its inclusion in

21 J Monar, ‘The Dynamics of Justice and Home Affairs: Laboratories, Driving Factors and Costs’ (2001) 39 Journal of Common Market Studies 747. 22 J Monar, ‘Democratic Control of Justice and Home Affairs: The European Parliament and the National Parliaments’ in R Bieber and J Monar (eds), Justice and Home Affairs in the European Union: The Development of the Third Pillar (European Interuniversity Press, 1995); T Bergmann, ‘National Parliaments and EU Affairs Committees: Notes on Empirical Variation and Competing Explanations’ (1997) 4 Journal of European Public Policy 373. 23 S Peers, EU Justice and Home Affairs, 3rd edn (Oxford, Oxford University Press, 2011). 24 Monar (n 22). 25 N Walker, Europe’s Area of Freedom, Security, and Justice (Oxford, Oxford University Press, 2004) 24. 26 Lavenex and Wagner (n 9); Peers (n 23).

All Buzz, No Bite  289 the ‘ordinary’ EU legislative-making procedures would solve the problem of parliamentary control deficit and would reduce the secrecy surrounding the Council’s decisions. This would also help reduce the security-oriented approach of the AFSJ. Different scholars have argued that these expectations have not been met either by the EP’s involvement as a co-legislator in the AFSJ law-making process or by national parliaments’ scrutiny of national governments’ decisions in this area. On the one hand, the EP has tended to adopt fewer liberal positions since it has been granted full legislative powers. Under consultation, the EP positioned itself in opposition to the Council, often criticising it for its too security-oriented positions and even challenging several of its decisions before the European Court of Justice. However, with the generalisation of the co-decision procedure, the EP only occasionally used its new prerogatives to impact on the development of the AFSJ policies.27 As de Hert and Papakonstantinou28 show for the data protection case, the EP in the past demonstrated a very pro-data protection and prohuman rights position. However, once in power, ‘this profile has been watered-down and subjected to political necessity’. Scholars offered different explanations for the EP’s change of attitude. For example, in relation to data protection, the EP softened its position in exchange for more and earlier involvement in the negotiations.29 The political composition of the EP after the 2009 elections, which made centre-right groups more pivotal actors to form winning coalitions with the Council, also determined the policy stability of the policy area.30 In addition, the shift from unanimity to qualified majority voting and the emergence of more populist political forces limited deliberation and consensus-seeking in the Council. As Roos has shown, AFSJ proposals have become more contentious in recent years.31 This is particularly true for border control and visa policies.32 If these studies have undoubtedly increased our understanding about the role played by the EP as a co-legislator in justice and home affairs policies, it is still not clear whether and how much the EP has an impact on the AFSJ policies and whether its involvement reduced the preeminence of Member States’ executives. The main reason for this knowledge gap is that existing studies focused on specific sub-policy fields and on the co-legislative function of the EP. To account for the potential re(balance) of the AFSJ, one has to go beyond the study of single salient case studies. And, as we shall see in this chapter, only 60 per cent of the justice and home affairs procedures are subject to the ordinary legislative procedure. At the same time, scholars studying EU decision-making have shown that informal negotiations and first reading agreements have mushroomed since the Amsterdam

27 F Trauner and S Lavenex, ‘A Comparative View: Understanding and Explaining Policy Change in the Area of Freedom, Security and Justice’ in F Trauner and A Ripoll Servent (eds), Policy Change in the Area of Freedom, Security and Justice: How EU Institutions Matter (Abingdon, Routledge, 2015) 232–33; E Lopatin, ‘The Changing Position of the European Parliament on Irregular Migration and Asylum under Co‐decision’ (2011) 51 Journal of Common Market Studies 740; A Ripoll Servent, ‘Holding the European Parliament Responsible: Policy Shift in the Data Retention Directive from Consultation to Codecision’ (2013) 20 Journal of European Public Policy 972. 28 P de Hert and E Papakonstantinou, ‘Data Protection: The EU Institutions’ Battle over Data Processing vs Individual Rights’ in Trauner and Ripoll Servent (n 27). 29 ibid. 30 Ripoll Servent (n 15). 31 C Roos, ‘Opposition or Consensus in the Justice and Home Affairs Council? The How and Why of Increasing Member State Contestation over EU Policy’ (2018) 41(5) Journal of European Integration 569. 32 R Zaiotti, ‘Border Management: The Schengen Regime in Times of Turnoil’ in Trauner and Ripoll Servent (n 15).

290  Angela Tacea Treaty made it possible to ‘fast track’ legislation.33 If the AFSJ field follows the same trend, it means that the empowerment of the EP did not reduce the secrecy around the Council’s decisions and did not solve the democratic legitimacy problem. The increased use of trialogues makes the decision-making process more informal and ad hoc, and thus continues to keep the AFSJ decision-making opaque for citizens. On the other hand, the few studies on domestic policy-making of justice and home affairs policies and of the parliamentary scrutiny of AFSJ show that national parliaments have become more active in EU affairs,34 the AFSJ being one of the most scrutinised areas of EU policy-making.35 Nonetheless, in a similar manner to the EP, scholars have shown that national parliaments did not help reduce the security-oriented approach of the AFSJ as they rarely challenge the restrictive positions of national governments. For example, Saskia Bonjour and Maarten Vink show that national parliamentary actors did not oppose the restrictive stance of the Dutch government because these kinds of family migration policies in the Netherlands have been generally supported by very broad majorities.36 In the same vein, it has also been shown that the scrutiny of parliamentary majorities is oriented towards the support of the government and not towards a more liberal approach on justice and home affairs issues.37 These findings prove that the involvement of national parliaments in the AFSJ decision-making process did not change the substantive rationale of this policy field. However, we do not know the reason why national parliaments are not challenging their governments. It might be that despite the changes introduced by the Lisbon Treaty, the executive is still in a better place to be an active player in the EU decision-making process or that national parliaments chose not to make use of their prerogatives. Contrary to other EU policy areas, justice and home affairs has its own specificities because it deals with confidential and secret documents. If the Lisbon Treaty granted equal access to national parliaments to all public documents, all other types of documents are provided by national governments.38 Thus, national governments might still be better informed than their parliaments. Moreover, we still do not know to what extent national parliaments’ scrutiny influences the positions national delegations take in the Council. In order to assess whether a re(calibration) between Member States’ executives and the parliaments of Europe took place after the Lisbon Treaty, this chapter therefore focuses, on the one hand, on the involvement of the EP in the decision-making process in the AFSJ and, on the other hand, on the evaluation of national parliaments’ contributions in this policy field.

33 J Greenwood and C Roederer-Rynning, ‘Taming Trilogues: The EU’s Lawmaking Process in a Comparative Perspective’ in O Costa (ed), The European Parliament in Times of Crisis: Dynamics and Transformations (London, Palgrave Macmillan, 2019) 122. 34 K Auel, O Rozenberg and A Tacea, ‘To Scrutinise or Not to Scrutinise? Explaining Variation in EU-Related Activities in National Parliaments’ (2015) 38 West European Politics 282. 35 A Tacea, ‘Quand la JAI fait dissidence. Expliquer l’activité des parlements nationaux dans le domaine européen de liberté, de sécurité et de justice’ (2018) 59 Politique européenne 58. 36 S Bonjour and M Vink, ‘When Europeanization Backfires: The Normalization of European Migration Politics’ (2013) 48 Acta Politica 389. 37 Tacea (n 19). 38 COSAC, Seventeenth Bi-annual Report: Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny (2–4 October 2011) 10.

All Buzz, No Bite  291

III.  Old Habits Die Hard: An Increased But Still Limited Role for the EP With the exception of first pillar measures, such as immigration, asylum and civil laws, the EP was, until the entry into force of the Lisbon Treaty, limited in terms of the AFSJ to a consultation role. Indeed, due to the politically sensitive nature of justice and home affairs issues, the legislative role lay solely with the Council of Ministers, which decided by unanimity to adopt or to reject the legislative proposal, the EP only being consulted on this. The Council was not legally bound to follow the advice of the EP or to integrate its proposed amendments should these have been suggested. Figure 16.1 shows that the consultation procedure was before the Lisbon Treaty the regular law-making procedure, thus offering a dominant role to the Council of Ministers and to national executives. Starting with 2010, the procedures proposed in consultation drop sharply, allowing for an increase of the number of acts in co-decision. The co-decision procedure (now called the ordinary legislative procedure (OLP)) puts the EP on an equal footing with the Council, meaning that both institutions have a deciding vote in the legislative process and that both of them may amend a proposal. At the same time, although the right of initiative in policing and criminal law is still open after the Lisbon Treaty to the joint initiative of a group of one-quarter of the Member States (Article 75, Title V TFEU), the number of Member States’ initiatives decreased sharply after 2010 to the point that all law-making procedures after 2011 were initiated by the European institutions. These preliminary results suggest that institutional and rule changes provided by the Lisbon Treaty reduced the pre-eminence of Member States, allowing for an increased role of the EP in the legislative procedure in the AFSJ. However, on the one hand, Member States are still at the origin of an important part of the Commission’s proposals in the AFSJ. For example, the AFSJ PolTrack data shows that in 2011 from 27 procedures, 15 were initiated at the request of one or several Member States. On the other hand, Figure 16.1 shows a spectacular increase of non-legislative procedures (NLPs) in this area. From 2010 to 2017, 86 NLPs, representing 40 per cent of the adopted AFSJ acts, were initiated compared to only 10 before 2010. Most of these NLPs concern the

Figure 16.1  The law-making activity in the AFSJ by type of procedure (1998–2017) 50 40 30 20 10 0 19 98 19 99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 20 14 20 15 20 16 20 17

–10

APP OLP Source: AFSJ PolTrack database

AVC SLP

CNS Linear (NLE)

NLE Linear (OLP)

292  Angela Tacea negotiation and conclusion of formal agreements with third countries,39 measures in the domain of family law,40 measures in the field of criminal procedural law not already foreseen by the Treaty,41 as well as EU/Schengen ‘common policy on visas’.42 This development might not be surprising considering that the abolition of the pillar structure increases the EU’s potential to develop the external dimension of the AFSJ. At the same time, to a greater extent than its predecessors, the Stockholm Programme (2009–14) put a clear emphasis on the strengthening of the AFSJ external dimension. However, the increase of NLPs is not without consequences for the capacity of the EP to participate in law-making in the AFSJ field. Indeed, although the Lisbon Treaty massively strengthened the role of the EP in the external dimension of the AFSJ, allowing it to ratify international agreements in internal security, with co-decision or consent now being required for almost all acts, in practice 40 per cent of the NLPs initiated between 1998 and 2017 required only the consultation of the EP. Those 40 per cent of NLPs were adopted either on the basis of the Article 81(3) TFEU, such as proposals authorising different EU Member States to accept the accession of third countries to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, or on Article 78(3), which provides a specific legal basis to deal with emergency situations at the external borders. When consent was required, the EP approved during the first reading all draft non-legislative acts. This high increase of NLPs limits the scope of the legislative powers that the EP gained with the extension of the co-decision to the AFSJ, because the capacity of the EP to fully co-legislate concerns only 60 per cent of the law-making procedures. When it comes to the legislative procedures, the post-Lisbon period offers a mitigated picture of the capacity of the EP to participate in the legislative process in AFSJ and to exert influence over policy outputs. On the one hand, although the EP is criticised for aligning its liberal and rights-enhancing positions to the more restrictive positions of Member States,43 it did manage to secure a say in the decision-making process. The EP is tabling and getting adopted more of its amendments, and it manages to delay the adoption of legislation. On the other hand, the greater role that the EP plays in the AFSJ legislation comes with an increased use of informal negotiations between the EP, the Council and the Commission at the expense of a more transparent legislative process. If we were to judge by the number of rejected or withdrawn proposals, the changes introduced by the Lisbon Treaty in the AFSJ led to a rather efficient legislative process. At first, there was a general concern that the extension of the co-decision procedure in relation to justice and home affairs matters would generate legislative gridlocks. The EP and the Council were not used to working together,44 and the EP was known for its vocal opposition to the restrictive positions of the Council on these issues. The practice shows that the institutions adapted to the new rules of the game and managed to reach agreement on most

39 Article 218 TFEU. 40 ibid art 81(3). 41 ibid art 82(2). 42 ibid art 77(2)(a). 43 A Ripoll Servent, The European Parliament (London, Palgrave Macmillan, 2018); Trauner and Ripoll Servent (n 27); Lopatin (n 27). 44 Ripoll Servent (n 43).

All Buzz, No Bite  293 of the legislative proposals. Indeed, after the entry into force of the Lisbon Treaty, the EP did not reject any legislative proposal, as it had done before 2010. Moreover, only 2.7 per cent of the co-decision procedures proposed after the Lisbon Treaty were withdrawn by the Commission because the negotiations took too long (on average 1,572 days by the time they were withdrawn) or have remained deadlocked at the level of the EP, either awaiting committee decision or the first reading, compared to 13 per cent before 2010. Thus, contrary to what one might expect, the involvement of the EP does not reduce the efficiency of the law-making procedure. The legislative process seems smoother after the Lisbon Treaty compared to the period before its entry into force and the cooperation between the European institutions more efficient. However, the efficiency of the decision-making process comes at the expense of its transparency and public awareness. Indeed, the efficiency of the legislative process might be explained by the increased reliance on informal modes of decision-making.45 The Committee on Civil Liberties, Justice and Home Affairs (LIBE) is, together with the Economic and Monetary Affairs and the Environment, Public Health and Food Safety Committees, one of the most prolific committees when it comes to the number of trilogues.46 Trilogues, which are informal but institutionalised negotiations between the EP, the Council and the Commission, resulted from the Amsterdam Treaty as an answer to the logistical challenges raised by the 2004–07 EU enlargement and the progressive empowerment of the EP.47 Although co-decision sets up to three readings, the Amsterdam Treaty introduced the possibility to ‘fast track’ legislation and to adopt it either after a first reading of the EP, before the Council issues a common position, or as an ‘early second reading agreement’, meaning that once the EP, the Council and the Commission have reached an informal agreement during trilogues, an act can be adopted after a first reading of the EP, but before the Council issues a common position. When looking at the legislation adopted in the AFSJ after 2010, the figures are startling. As Figure 16.2 shows, OLP has become a single-reading procedure.48 Very few proposals reached the second reading stage49 after 2010 and none after 2013. However, if this trend can also be noticed in other policy areas, significant discrepancies exist between policy sectors. For example, most of the legislation is adopted during the first reading in AFSJ and Economic and Monetary Union and Free Movement of Capital policies. However, this is not the case for environmental policies, where around 20 per cent of the legislation reaches the third reading stage.50

45 H Farrell and A Héritier, ‘Formal and Informal Institutions under Codecision: Continuous Constitution‐Building in Europe’ (2003) 16 Governance 577. 46 Ripoll Servent (n 43). 47 M Shackleton and T Raunio, ‘Codecision since Amsterdam: A Laboratory for Institutional Innovation and Change’ (2003) 10 Journal of European Public Policy 171; Greenwood and Roederer-Rynning (n 33). 48 C Roederer-Rynning and J Greenwood, ‘The Culture of Trilogues’ (2015) 22 Journal of European Public Policy 1148. 49 The Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations, 2003/0168/COD (Rome II) was the only AFSJ legislative proposal to reach the Conciliation committee stage. 50 La production législative de l’Union européenne 1996–2014 [base de données], Centre de Données Socio-Politiques (CDSP, CNRS-Sciences Po) et Centre d’Etudes Européennes (CEE, CNRS-Sciences Po) [producteurs], Centre de Données Socio-Politiques [diffuseur].

294  Angela Tacea The adoption of legislation in single-reading procedures has two main consequences: on the one hand, it increases the capacity of the EP to delay the adoption of legislation; and, on the other hand, it raises criticism regarding the lack of transparency of the decision making-process. The adoption of justice and home affairs acts under co-decision is slightly faster after the Lisbon Treaty than was the case beforehand. The average time of adoption of a draft legislative act under co-decision was 769 days before 2010, whereas it passes on average at 682 days after 2010. This does not mean that the overall time of adoption of legislative acts in justice and home affairs matters decreased with the Lisbon Treaty – quite the opposite. If we include all types of procedures, it takes two times longer (246 days before 2010 compared to 567 days after 2010) to adopt AFSJ legislation after the entry into force of the Lisbon Treaty than before. Moreover, second readings are constraining both in terms of timing, because each institution has three months to adopt its position, and in terms of voting rules, as the EP has to act by qualified majority and the Council by unanimity if the Commission does not accept the amendments of the EP.51 Thus, the two co-legislators have an interest in concluding early second reading agreements, for which first readings rules apply. In practice, with the exception of the Proposal for a directive on the fight against fraud to the EU’s financial interests by means of criminal law,52 all legislative acts presented in Figure 16.2 as second-reading agreements are in fact early second-reading agreements. When they take place, early second-reading agreements tend to take longer than secondreading agreements. Highly controversial issues might need up to 14 trilogues in order to find an agreement, as was the case for the General Data Protection Regulation. For example, early second-reading agreements, concluded in 2012 and 2013, took on average 1174 days compared to 991 days for second-reading agreements concluded between 1998 and 2009. Thus, there is no doubt that co-decision is a more complex and longer procedure. The informal negotiations between the EP, the Commission and the Council prolonged the overall time of adoption of legislation. At the same time, with the exception of electoral years (2010, 2014), the number of amendments53 to the Commission proposal tabled and adopted in the EP increased after the Lisbon Treaty, independently of the type of legislative procedure Figure 16.3. Figure 16.2  Number of readings in the EP (1998–2017) 30 20 10

19 98 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 20 14 20 15 20 16 20 17

0

1 RD

2 RD

Source: AFSJ PolLexTrack database



51 Article

294 TFEU (ex art 251 TEC); Rule 67 of the EP’s Rules of Procedure.

52 2012/0193/COD. 53 The

EP only provides data on votes and amendments after 2004.

All Buzz, No Bite  295 Interestingly enough, the rate of acceptance of the EP amendments by the Commission and the Council also increased after 2010. It seems that the EP secured a say in the decisionmaking process by managing to table and get more amendments accepted to the proposals of the European Commission. Unfortunately, these numbers do not say anything about the EP’s policy position. As some researchers have pointed out, knowing that its amendments matter under the co-decision procedure, the EP became more reluctant to fail. Thus, its amendments became closer to the position of the Council.54 At the same time, it may as well be that a higher level of acceptance of the EP’s amendments by the Commission and the Council is indicative of a greater number of technical and uncontroversial amendments, and not of a greater power of the EP.55 However, testing these hypotheses requires an in-depth text analysis. Although the EP’s policy position might have become closer to that of the Council, the Lisbon Treaty empowered the EP at least with a capacity of delaying the adoption of legislation. Indeed, when agreements are reached after the EP’s first reading, but before the Council’s common position, the amount of time that legislative procedures took shows that reaching an agreement in AFSJ is not an easy task. However, this trend seems to have stopped because all AFSJ acts have been adopted since 2013 at first reading (see Figure 16.2). If the increased use of trilogues in the AFSJ boosted the efficiency of the decisionmaking process in the AFSJ, it also raises transparency issues. Before the mid-2000s, the decision-making process in justice and home affairs took an intergovernmental approach that was extensively criticised for its lack of transparency. Decisions were agreed behind the closed doors of the Council, without the usual level of control exercised by national parliaments and national courts.56 It was expected that the involvement of the EP in the decision-making process in the AFSJ would reduce the secrecy surrounding the Council’s decisions and would increase the democratic legitimacy of the decision-making process. However, the spectacular increase of trilogues, which are not accessible to the general public

Figure 16.3  Number of amendments in the EP weighted by the number of proposals (2004–17) 30 20 10

17

16

20

15

20

14

20

13

20

12

20

11

20

10

20

09

20

08

20

07

20

06

20

05

20

20

20

04

0 Number of tabled amendements Linear (Number of tabled amendements) Source: AFSJ PolLexTrack database

54 Ripoll Servent (n 15). 55 A Kreppel, ‘Moving Beyond Procedure: An Empirical Analysis of European Parliament Legislative Influence’ (2002) 35 Comparative Political Studies 784. 56 Peers (n 23).

296  Angela Tacea and the meeting documents of which are not publicly available,57 continues to keep AFSJ decision-making process partially opaque. The communautarisation of the AFSJ and the transformation of the EP into a co-decider reduced only marginally the space that national governments occupy in AFSJ legislative decision-making. In addition, the involvement of the EP did not solve the transparency and legitimacy problems that the AFSP faced before the Lisbon Treaty. The progressive empowerment of national parliaments by the EU Treaties has also been thought to have recalibrated the executive–legislative relationship.

IV.  National Parliaments’ Scrutiny of AFSJ Issues In general, national parliaments’ adaptation to the European integration followed similar institutional paths in all Member States. However, differences do exist when it comes to the type and the scope of parliamentary scrutiny of justice and home affairs issues. These differences are more the result of national constitutional systems than the result of European constitutional features. As Protocol No 1 annexed to the Lisbon Treaty recalls, ‘the way in which national Parliaments scrutinise their governments in relation to the activities of the Union is a matter for the particular constitutional organisation and practice of each Member State’. In this sense, before the Lisbon Treaty, the role of national parliaments in the AFSJ varied substantially from parliaments which enjoyed a veto power to parliaments which were barely consulted by their government.58 Most of the parliaments did not have the right to scrutinise third pillar measures.59 However, those parliaments that put in place a mandating system, such as the Nordic parliaments and, after 2004, some Eastern European parliaments, in practice enjoyed a veto power because most AFSJ acts required unanimity voting in the Council.60 Moreover, due to the sensitivity of AFSJ issues, some parliaments, such as the Dutch and German Parliaments, put in place a system of ‘consent’ for measures relating to justice and home affairs. Following this procedure, national ministers required the explicit or implicit consent of their parliament before taking any decision in the JHA Councils.61 In a certain sense, it is not correct to say that the Lisbon Treaty empowered national parliaments on an equal basis. Some parliaments indeed saw their prerogative reinforced by the fact that they were no longer dependent on their governments to receive information; however, on the contrary, other parliaments lost their veto power. After 2010, the

57 A Heritier and C Reh, ‘Codecision and its Discontents: Intra-organisational Politics and Institutional Reform in the European Parliament’ (2012) 35 West European Politics 1134; AE Stie, ‘Decision-Making Void of Democratic Qualities? An Evaluation of the EU’s Second Pillar Decision-Making Procedure’, European Integration online Papers, papers.ssrn.com/sol3/papers.cfm?abstract_id=1661757. 58 A Tacea, ‘The Role of National Parliaments in the Area of Freedom, Security and Justice: High Normative Expectations, Low Empirical Results’ in Trauner and Ripoll Servent (n 15). 59 Bergmann (n 22); A Maurer and W Wessels (eds), National Parliaments on Their Ways to Europe: Losers or Latecomers? (Baden-Baden, Nomos, 2001). 60 Article 37 TEU. 61 M van Keulen, ‘New Parliamentary Practices in Justice and Home Affairs: Some Observations’ in RL Holzhacker and P Luif (eds), Freedom, Security and Justice in the European Union: Internal and External Dimensions of Increased Cooperation after the Lisbon Treaty (Dordrecht, Springer, 2014).

All Buzz, No Bite  297 question no longer arose in terms of the existence or the absence of parliamentary scrutiny of justice and home affairs measures, as was the case before 2009, but in terms of the degree of scrutiny national parliaments can exercise. This is reflected in the quantity and quality of information received by national parliaments, which differ from one country to another. If public documents are directly forwarded to national parliaments by the European institutions, all other documents are forwarded by national executives (see Table 16.1). This creates discrepancies between national parliaments. For example, some parliaments, such as the Luxembourgish, the Dutch and the Romanian Parliaments, have access only to public documents, while others have access to a broader range of documents. However, only three parliaments – the Austrian, Slovakian and Spanish Parliaments – have access to EU secret and top-secret documents.

Table 16.1  Formal provisions regarding parliamentary scrutiny of justice and home affairs measures Country

Post-Maastricht62

Post-Amsterdam63

Post-Lisbon64

Scrutiny rights of third pillar

Scrutiny rights of third pillar

Type of documents to which national parliaments have access

Austria

YES

YES

Public, Limité, EU Restricted, EU Confidential, EU Secret, EU Top secret, COREPER, Council WG

Belgium

NO

NO

Public, Limité, EU Restricted

Bulgaria

Public, Limité, COREPER, Council Working Groups (WG)

Cyprus

Public, Limité

Czech Republic

Public, Limité, EU Restricted, COREPER, Council WG, Briefings

Germany

YES

YES

Public, Limité, EU Restricted, COREPER, Council WG, Briefings

Denmark

YES

YES

Public, Limité, EU Restricted Public, Limité, COREPER, Council WG, Briefings

Estonia Finland

YES

YES

Public, Limité, EU Restricted, EU Confidential, COREPER, Council WG (continued)

62 Bergmann (n 22); J-D Nuttens, Le Parlement français et l’Europe: l’article 88-4 de la Constitution (Paris, LGDJ, 2001). 63 A Maurer, ‘National Parliaments in the European Architecture: From Latecomers’ Adaptation towards Permanent Institutional Change’ in Maurer and Wessels (n 59) 440. 64 COSAC (n 38).

298  Angela Tacea Table 16.1  (Continued) France

YES

Legislative acts

Public, Limité, EU Restricted, EU Confidential, COREPER, Council WG, Briefings

Greece

YES

YES

Public, Limité, Briefings Public, Limité, COREPER, Council WG

Hungary Ireland

YES

YES

Public, Briefings

Italy

NO

NO

Public, Limité, COREPER, Council WG

Latvia

Public, Limité, COREPER, Council WG, Briefings

Lithuania

Public, Limité, EU Restricted, EU Confidential, EU COREPER, Council WG, Briefings

Luxembourg

YES

YES

The Netherlands YES

YES

Public

NO

Public, Limité, COREPER, Council WG

Malta

Public Public

Poland Portugal

NO

Romania

Public, COREPER, Briefings

Slovenia

Public, Limité, EU Restricted

Slovakia

Public, Limité, EU Restricted, EU Confidential, EU Secret, EU Top secret, COREPER, Council WG, Briefings

Spain

NO

NO

Public, Limité, EU Restricted, EU Confidential, EU Secret, EU Top secret, COREPER, Council WG, Briefings

Sweden

YES

YES

Public, Limité, EU Restricted, EU Confidential, COREPER, Council WG

UK

YES (HoC), NO (HoL)

Limited

Public, Limité + Briefings (HoL)

Differentiated access to documents has direct consequences for the information that national parliaments receive regarding justice and home affairs policies. National governments can invoke the limited or secret nature of documents in order to limit national parliaments’ access to information. Thus, if the Lisbon Treaty improved the capacity of national parliaments to scrutinise measures negotiated by interior ministers in JHA

All Buzz, No Bite  299 Councils, the constitutional systems of Member States still limit the possibility of involving national parliaments in AFSJ policy-making and still place national executives in a better position to be an active player in AFSJ. Pure institutional arguments do not sum up the role played by national parliaments in the AFSJ. Formal rules of procedure offer only a partial view of the scrutiny practice.65 Between 2009 and 2012, the number of parliamentary opinions66 sent to the European institutions followed only partially the European activity in the AFSJ. Indeed, as shown elsewhere, until 2012, the legislative priorities of the European institutions did not attract an equivalent parliamentary mobilisation.67 However, as Figure 16.4 shows, after 2012, parliamentary opinions started to closely follow the number of AFSJ legislative proposals. This also holds true when we look at parliamentary opinions by AFSJ policy sub-fields (see Figure 16.5). At an aggregate level, national parliaments’ opinions follow the EU legislative priorities in AFSJ Figure 16.4. However, taken individually, AFSJ proposals generate very different levels of parliamentary mobilisation. The year 2016 saw a spectacular increase of parliamentary opinions, mainly because of two proposals: the reform of the Dublin system, which generated 20 opinions; and the proposal for the European Union Agency for Asylum, which generated 16 opinions. Conversely, some proposals generate a very low level of mobilisation or none at all. The individual activities of national parliaments also vary from one parliament to another. Some parliaments, such as the Portuguese Parliament and the Italian Senate, are very active, while others, such as the Danish Parliament, do not send any opinions at all to the EU institutions. All in all, the formal empowerment of national parliaments by the EU treaties generated a greater mobilisation of national parliaments, notably concerning controversial issues, but parliamentary mobilisation does not correlate with their formal prerogatives. 200 150

201

100

17

16

20

15

20

14

NPs opinions

20

13

20

12

20

11

20

10

20

20

20

0

09

50

EU acts

Figure 16.4  Overall parliamentary opinions vs AFSJ proposed acts

56 1901

178

66

53 17

41

32 12

1910

1920

1930

1940

EU proposals

49 1950

Parliamentary opinions

Figure 16.5  Parliamentary opinions vs AFSJ proposed acts by policy sub-field68

Source: AFSJ PolTrack database

65 Auel, Rozenberg and Tacea (n 34); A Spreitzer and A-S Pigeonnier, ‘Parliamentary Scrutiny of EU Affairs: Cross-national Comparison with QCA’ (Inaugural General Conference of the ECPR Standing Group on Parliaments, ‘Parliaments in Changing Times’); A Benz, ‘Path-Dependent Institutions and Strategic Veto Players: National Parliaments in the European Union’ (2004) 27 West European Politics 875. 66 The figures include opinions sent by national parliaments within the framework of the political dialogue with the European Commission and reasoned opinions sent in the framework of the EWS. 67 Tacea (n 35). 68 Eur-Lex Policy codes. 19 Area of Freedom, Security and Justice: 19.01 General; 19.10 Free movement of persons; 19.20 Judicial cooperation in civil matters; 19.30 Police and judicial cooperation in criminal and customs matters; 19.40 Programmes; 19.50 External relations.

300  Angela Tacea Interestingly enough, there is no correlation either between the abstentions or the no votes of ministers in the Council meetings and the opinions sent by national parliaments to the European institutions. Thus, looking only at the numbers, we could have concluded that national parliaments’ opinions are not interlinked with the positions of national delegations/ministers in the Council. However, if we compare the content of parliamentary opinions to the written comments that national delegations sent to Council working groups, the similarities are stunning. A case in point is one of the most scrutinised legislative proposals: the data protection reform. The position expressed by national parliaments in the opinions they sent to the European institutions are very similar to the written comments that national delegations sent to the Working Group on Information Exchange and Data Protection (DAPIX). For example, the French Senate adopted a reasoned opinion mainly contesting the large number of delegated acts and the ‘one-stop-shop’.69 The French delegation did not raise exactly the same concerns as the French Senate; however, it did point out its ‘considerable reservations on the use of delegated acts and implementing acts’ and highlighted the potential harm of the lower standards imposed by the European regulation compared to the French national legislation on data protection.70 Similar concerns were raised by the German Bundesrat, which pointed out ‘a very high number of empowerments to adopt delegated acts’ and the ‘higher degree of legal security’ offered by the German national legislation compared to ‘the highly abstract individual provisions of the draft Regulation’.71 Although the Bundestag did not send a reasoned opinion, it did emphasise in its motion to the German government that the proposal raised many questions, such as the need to draw a clear distinction between data protection in the public sphere and the non-public sphere. Some of these issues were also raised in the written comments sent by the German delegation to DAPIX.72 In addition, the German delegation maintained a scrutiny reserve on Articles 1–11. The Swedish Riksdag also issued a reasoned opinion because it considered that the ‘Commission’s choice of legislative instrument for the proposed action, a Regulation, [went] farther that what [was] necessary to achieve the objectives pursued’. Moreover, the Riksdag was very critical of the number of delegated acts and questioned the beneficial effect of ‘such an exhaustive, detailed and complicated regulation’. The same position was expressed by the Swedish delegation, which maintained ‘a general scrutiny reservation and a reservation regarding the legal form of the instrument’ and stated that Sweden was ‘not convinced that the Commission should be empowered to adopt delegated acts in the extent proposed in the Regulation’.73 Despite the clear similarities between the parliamentary opinions and the position of national delegations in the Council working groups, we cannot claim that national

69 French Senate, Résolution européenne portant avis motivé sur la conformité au principe de subsidiarité de la proposition de règlement du Parlement européen et du Conseil relatif à la protection des données à caractère personnel, n° 105 of 4 March 2012. 70 Council of the European Union, Proposal for a regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) – Comments on Articles 11–27 (2012) 103. 71 Germany, Bundesrat, Vorschlag für eine Verordnung des Europäischen Parlaments und des Rates zum Schutz natürlicher Personen bei der Verarbeitung personenbezogener Daten und zum freien Datenverkehr (Daten- schutz-Grundverordnung), 52/12 of 30 March 2012. 72 Council of the European Union (n 70). 73 ibid.

All Buzz, No Bite  301 parliaments influenced the position of their governments or that the position of national parliaments comes as a legitimation of the governmental positions. Nonetheless, the solidarity between parliamentary majorities and national governments, as well as a sense of national unity regarding issues reflecting the core of a nation state, closely links the position of the two entities when expressed at the EU level. Parliamentary majorities do not have any incentives to nudge the negotiation position of the governments, as this would go against the fundamental principle of majoritarian parliamentary systems: the support of the government by its parliamentary majority. It would be constitutionally impossible for the members of the parliamentary majorities to keep governments in office while systematically talking stances against them on matters relating to the AFSJ. In addition to the political solidarity between the government and the parliamentary majority, the sensitivity of justice and home affairs issues, which are closely related to national sovereignty, encourages national parliaments to adopt national-centred and united positions to the detriment of efficient European policies. A case in point is the reform of the Dublin asylum system, a very controversial legislative recast proposed by the European Commission in 2016 and blocked at the time of writing (July 2020) at the Council working group level. National governments are extremely divided on the issue of European solidarity towards third-country nationals and stateless persons. The five Member States of Mediterranean Europe fear that they will have to deal with the migration issues alone. A second group of Member States are in favour of a form of European solidarity in order to deal with the migration issues. And a third group, which includes Austria and the Višegrad countries, are against any form of European solidarity. The same division has also been expressed during the interparliamentary committee meeting of 24 January 2018 on the European Agenda on Migration, where the Eastern European nations were all aligned with regard to their position on immigration and asylum, and the exchanges were ‘fierce’.74

V. Conclusion The analysis of the parliamentarisation of the AFSJ reveals that despite the increased involvement of the EP and of national parliaments in law-making procedures, the imbalance in favour of national governments is still present. From a procedural point of view, an important part of the measures proposed in the AFSJ is not subject to co-decision, which limits the scope of the EP’s newly acquired prerogatives. Even when non-legislative procedures required the consent of the EP, such as in the case of visa liberalisation agreements, they have all been adopted with no particular opposition from the EP. With the SWIFT, EU-US PNR agreements and ACTA, the EP seemed to have become a more relevant actor in international agreements. However, our data show that this was limited to only a few cases in the data protection and counterterrorism fields. At the same procedural level, national parliaments are still relying on their governments to have access to certain type of documents. This creates discrepancies 74 A Tacea and F Trauner, ‘The European and National Parliaments in the Area of Freedom, Security and Justice: Do Interparliamentary Meetings Lead to Stronger Cooperation?’ Journal of European Integration (forthcoming).

302  Angela Tacea between parliaments that have access to EU restricted, EU confidential and Council working group documents, and those that do not. Because internal security allows a higher degree of secrecy and urgency compared to other policy areas (except foreign and security policy), governments can invoke the secrecy of negotiations in order to refuse parliamentarians access to information. Interparliamentary cooperation might be a way to overcome this limitation. However, in practice, on the one hand, some parliaments are not interested in cooperating with their counterparts at the EU level and, on the other hand, interparliamentary cooperation in the AFSJ is superficial.75 From a substantive point of view, the picture is more optimistic. The generalisation of the ordinary legislative procedure provided the EP with a more important role in the legislative procedure. Although its position might have become closer to that of the Council, it does manage to delay the adoption of legislation and/or to modify its content through amendments. The empowerment of national parliaments by the Lisbon Treaty triggered a greater level of parliamentary activity. National parliaments are engaging in the political dialogue with the European institutions and are scrutinising the positions taken by their governments in the negotiations in Brussels. However, the increased politicisation of justice and home affairs issues, such as border control, asylum and migration or terrorism, and the sensitivity of those issues for the national sovereignty result in closer parliamentary opinions and governmental positions. Lastly, from a democratic legitimacy point of view, the justice and home affairs area reveals a mitigated picture. On the one hand, the increased use of trilogues, which are not accessible to the general public, raises transparency concerns and continues to keep the AFSJ decision-making process partially opaque. On the other hand, the involvement of national parliaments comes, at least for controversial issues, with a politicisation of parliamentary debates that raises public awareness about issues that have direct consequences on their human rights and civil liberties.



75 ibid.

Epilogue Executives, Legislatures and the Semantics of EU Public Law: A Pandemic-Inflected Perspective PETER L LINDSETH

I.  Introduction: The Coronavirus and Executive-Technocratic Governance The writer of an epilogue has one clear advantage over the substantive contributors to a collective volume. I am referring, of course, to the passage of time, however short that interval may be. Writing from a slightly later vantage point, the epilogue writer knows just a bit more about what comes next, even if only by a couple of months. Sometimes that interval is uneventful and need not be addressed. At other times, it is momentous and cannot be ignored. With the arrival of the coronavirus pandemic in the months leading up to the time of this writing (May 2020), the interval for this epilogue clearly fell into the second category. The many excellent contributions to this volume were finalised for the most part by the end of 2019 and the very beginning of 2020. Their aim was to take stock of certain key developments in European governance since the entry into force of the Lisbon Treaty. Their more particular focus was on changes in executive–legislative relations (primarily supranational but also national) during a time when the global financial crisis morphed into the eurozone crisis and beyond, branching out into several other distinct challenges – the migration crisis, terrorism, Brexit etc. Given this timing and focus, the volume’s contributors could not have foreseen how the coronavirus pandemic, originally merely an ominous possibility at the beginning of the year, would transform itself into a fully realised public health disaster over the coming months. This disaster, of course, should be measured first and foremost in lives lost, as well as in the painful economic contraction and deep inequality that the crisis has once again revealed (particularly in the US, where this writer lives).1 However, beyond these stark effects, there are arguably several developments closer to the core focus of this volume that deserve attention, at least by way of introduction here.

1 See M Sandbu, ‘The Coronavirus Downturn Makes the Worst-off Suffer Most’ Financial Times, 14 May 2020, https://www.ft.com/content/d394f860-aecb-46ae-b0d4-ea0fb24d35c8.

304  Peter L Lindseth The pandemic has intensified, I would suggest, certain tendencies in modern governance that have for a long time profoundly influenced the relationship between executive and legislative power. I would further argue that these tendencies have been apparent for a century or more, tracing back to the emergence of modern administrative state in the early twentieth century.2 While the peculiar contours of modern administrative governance undoubtedly vary from polity to polity, they nonetheless share certain core features when viewed at a higher level of generality: • first, a concentration of political and legal authority at the summit of the national executive – that is, in the chief executive (whether presidents or prime ministers, depending on the system) as well as in their immediate political appointees in the cabinet ministries or departments; • second, the growing role of technocratic expertise in supporting this expansive national executive authority, manifesting itself in an often extensive range of normative and decisional competences exercised by administrative actors on the basis of legislative delegations (public health being one of the most important); and • third, in a countervailing fashion, the persistence of a privileged role of the national legislature in one crucial domain that cannot be delegated: the legitimate compulsory mobilisation of resources, both human and fiscal, without which the expansion of executive and technocratic power would not be possible. I am referring here to what we can call the ‘metabolic constitution’ of modern governance – the capacity to convert human and fiscal resources into public goods – in which national parliaments (NPs) remain at the very heart of the process, despite the otherwise vast diffusion and fragmentation of regulatory power elsewhere.3 All three of these elements, I would argue, have loomed large in the early response to the coronavirus pandemic in Europe, sometimes in encouraging and sometimes in (obviously) disturbing ways. On the disturbing side of the ledger, of course, has been the cynical manner in which certain national executives (notably those in Hungary and Poland) have tried to exploit the crisis to consolidate their authoritarian and illiberal aspirations.4 (Unfortunately, this development has echoes in the US as well: President Trump revealed both before the crisis5 2 In this regard, the interwar period and the postwar decades were crucial, as explored in the early chapters of PL Lindseth, Power and Legitimacy: Reconciling Europe and the Nation-State (Oxford, Oxford University Press, 2010). See also PL Lindseth, ‘The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s–1950s’ (2004) 113 Yale Law Journal 1341. 3 On the concept of the ‘metabolic constitution’, see PL Lindseth, ‘The Perils of “as if ” European Constitutionalism’ (2016) 22 European Law Journal 696; PL Lindseth, ‘The Metabolic Constitution and the Limits of EU Legal Pluralism’ in G Davies and M Avbelj (eds), Research Handbook in Legal Pluralism in EU Law (Cheltenham, Edward Elgar, 2018); PL Lindseth, ‘The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance’ in F Bignami (ed), EU Law in Populist Times: Crises and Prospects (Cambridge, Cambridge University Press, 2020). 4 K Kovács, ‘Hungary’s Orbánistan: A Complete Arsenal of Emergency Powers’ Verfassungsblog, 6 April 2020, https://verfassungsblog.de/hungarys-orbanistan-a-complete-arsenal-of-emergency-powers; J Jaraczewski, ‘An Emergency by Any Other Name? Measures against the COVID-19 Pandemic in Poland’, Verfassungsblog, 24 April 2020, https://verfassungsblog.de/an-emergency-by-any-other-name-measures-against-the-covid-19-pandemicin-poland. See, more generally, ‘COVID 19 and States of Emergency’, Verfassungsblog, https://verfassungsblog.de/ category/debates/covid-19-and-states-of-emergency-debates. 5 See, eg, M Brice-Saddler, ‘While Bemoaning Mueller Probe, Trump Falsely Says the Constitution Gives Him “the Right to Do Whatever I Want”’ Washington Post, 23 July 2019, https://www.washingtonpost.com/ politics/2019/07/23/trump-falsely-tells-auditorium-full-teens-constitution-gives-him-right-do-whatever-i-want.

Epilogue  305 and in its midst6 his own distorted understanding of the scope of executive power relative to the constraints of law. In this, the President has been supported by the extremist views of his Attorney General.7) For the EU, at least in the early stages of the pandemic response, more encouraging was the way in which supranational institutions attempted to provide mechanisms for coordination and cooperation among executive and technocratic actors at the national level in order to address the crisis more effectively. The Commission, for example, activated the general ‘escape clause’ in the ‘six-pack’ regulations implementing the Stability and Growth Pact,8 thus temporarily freeing the Member States from EU fiscal constraints. Similarly, in the area of state aids, the Commission also announced the relaxation of a panoply of restrictions on Member State support to businesses on the verge of collapse.9 As a consequence of these two steps, the Member States were able to pump nearly €2 trillion into the economy (though, as The Economist reported: ‘Half of this was in Germany: a problem if you are a producer based in a country that cannot afford to be so generous, but which must accept German-made goods’).10 In addition, in the area of public health per se, even though EU competences are limited, the EU still has had at its disposal both certain coordinating institutions (eg, the European Centre for Disease Control) as well as certain innovative instruments (eg, a COVID-19 public procurement scheme)11 to support national efforts. Indeed, in typical fashion, European legal academics have argued that, despite the EU’s limited competence in the area of public health, the various provisions in the treaties nonetheless create ‘a web of competence’ (emphasis in original) ‘which is stronger than its individual threads, and as such extends its legal powers beyond those of the separate threads of the discrete competence norms’.12 Of course, one cannot talk about the supranational response to the crisis without also focusing on the European Central Bank (ECB). The ECB’s most important initiative – the so-called Pandemic Emergency Purchase Programme (PEPP) – has also arguably pushed

6 M Flynn and A Chiu, ‘Trump Says His “Authority is Total”: Constitutional Experts Have “No Idea” Where He Got That’ Washington Post, 14 April 2020, https://www.washingtonpost.com/nation/2020/04/14/ trump-power-constitution-coronavirus. 7 See generally WP Barr, ‘The 19th Annual Barbara K Olson Memorial Lecture’, Federalist Society, 2019 National Lawyers Convention, Washington, DC, 15 November 2019, https://www.justice.gov/opa/speech/ attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture. 8 See ‘Communication from the Commission to the Council on the activation of the general escape clause of the Stability and Growth Pact, Brussels’ COM (2020) 123 final, 20 March 2020, https://ec.europa. eu/info/sites/info/files/economy-finance/2_en_act_part1_v3-adopted_text.pdf. See also ‘Statement of EU Ministers of Finance on the Stability and Growth Pact in Light of the COVID-19 Crisis’, 23 March 2020, http://www.consilium.europa.eu/en/press/press-releases/2020/03/23/statement-of-eu-ministersof-finance-on-the-stability-and-growth-pact-in-light-of-the-covid-19-crisis. 9 See generally ‘Competition – State Aid – State Aid Rules and Coronavirus – European Commission’, https:// ec.europa.eu/competition/state_aid/what_is_new/covid_19.html. 10 See ‘The European Union is Having a Bad Crisis’ The Economist, 14 May 2020, https://www.economist.com/ leaders/2020/05/14/the-european-union-is-having-a-bad-crisis. See also J Brunsden, S Fleming and M Peel, ‘Crisis in Europe: Von der Leyen’s Audacious Bid for New Powers’ Financial Times, 18 May 2020, https://www.ft.com/ content/775c4db2-4e3d-426f-b937-243f0673cc14. 11 For more detail, see ‘European Union Emergency Support Instrument for the Healthcare Sector – Questions and Answers’, 2 April 2020, https://ec.europa.eu/commission/presscorner/detail/en/QANDA_20_577. 12 KP Purnhagen et al, ‘More Competences Than You Knew? The Web of Health Competences for Union Action in Response to the COVID-19 Outbreak’, Amsterdam Law School Research Paper No 2020-13; Amsterdam Centre for European Law and Governance Research Paper No 2020-02 2020, https://papers.ssrn.com/abstract=3581587.

306  Peter L Lindseth its competences once again to their limits, just as in the eurozone crisis.13 The PEPP again raised the fraught question of the boundary between monetary policy (the responsibility of the ECB) and economic policy (the responsibility of the Member States), which also clouded the response to the eurozone crisis of the early 2010s as well as the ‘quantitative easing’ programs of the mid-decade. The ECB gets repeatedly thrust into a central role in addressing crises in the EU for a very simple reason: ‘in Europe the ECB is the only agency engaged in economic policy worthy of the name’ and ‘is the one part of the complex European constitution that actually functions with real authority and clout as a federal institution’.14 The ECB, using the tools of monetary policy, is forced to play this role precisely because the EU has generally lacked fiscal capacity of its own. Some leaders have hoped that the pandemic would finally bring the EU to a ‘moment of truth’ on this point (in the words of Emmanuel Macron),15 or a ‘critical juncture’ (in the academic jargon).16 And, indeed, the European Council’s decision in late April 2020 to task the Commission with the development of a ‘recovery fund’ built on borrowing against an increase in the Multiannual Financial Framework (MFF) – the EU’s regular, seven-year budget – seemed to hold out great promise in this regard. The MFF would rise from the current 1.2 per cent of Gross National Income (GNI) to around 2 per cent of GNI for the first two or three years of the seven-year cycle.17 The increase would be financed through increased EU debt backed by the guarantees of the Member States equal to each country’s proportional responsibility for the MFF. While leveraging the MFF as an instrument of common borrowing is an audacious exercise in financial engineering – indeed, a ‘Coronabond’ in all but name – it is important not to exaggerate this move as some kind of ‘Hamiltonian’ moment for the EU.18 Many observers fixate on debt-mutualisation as the primary sign of such a moment, when in historical fact, the true Hamiltonian innovation of the founding period in the US was the conferral 13 Indeed, if you follow the German Bundesverfassungsgericht, the PEPP may have potentially even crossed those limits, or at least that could be one implication of the Court’s landmark judgment on the earlier Public Sector Purchase Programme (PSPP). See BVerfG, Judgment of the Second Senate of 5 May 2020 on the ECB’s Public Sector Purchase Programme (PSPP), 2 BvR 859/15, www.bverfg.de/e/rs20200505_2bvr085915en.html. The PSPP was by far the largest of the ECB’s mid-decade efforts at ‘quantitative easing’ (QE) to stimulate the eurozone economy in the face of low inflation and sluggish growth. For an excellent summary of the import of that judgment, see M Dani et al, ‘At the End of the Law’ Verfassungsblog, 15 May 2020, https://verfassungsblog.de/at-the-end-of-the-law. See also G Davies, ‘The German Constitutional Court Decides Price Stability May Not Be Worth its Price’ European Law Blog, 21 May 2020, https://europeanlawblog.eu/2020/05/21/ the-german-federal-supreme-court-decides-price-stability-may-not-be-worth-its-price. 14 A Tooze, ‘The Death of the Central Bank Myth’ Foreign Policy, 13 May 2020, https://foreignpolicy. com/2020/05/13/european-central-bank-myth-monetary-policy-german-court-ruling. 15 E Macron, ‘Transcript: ‘We are at a Moment of Truth’ (English)’ Financial Times, 17 April 2020, https://www. ft.com/content/317b4f61-672e-4c4b-b816-71e0ff63cab2. 16 See, eg, G Capoccia, ‘Critical Junctures and Institutional Change’ in J Mahoney and K Thelen (eds), Advances in Comparative-Historical Analysis (Cambridge, Cambridge University Press, 2015). With regard to the EU specifically, see Lindseth, ‘The Democratic Disconnect’ (n 3). For further discussion, see the conclusion to this epilogue below. 17 While this volume was in production, the European Council, meeting over five gruelling days of negotiation in July 2020, definitively adopted a reworked version of the Commission’s proposal, dubbed ‘Next Generation EU’. The total fund size was €750 billion, with €390 distributed by grants and €360 distributed by loans. For further details, see Conclusions of the European Council’s Special Meeting, EUCO 10/20, Brussels 21 July 2020, < https:// www.consilium.europa.eu/media/45109/210720-euco-final-conclusions-en.pdf>. 18 As Wofgang Münchau (@EuroBriefing) tweeted: ‘A useful first step, but please spare us all this Hamilton nonsense’ (9:02 CET, 19 May 2020, https://twitter.com/EuroBriefing/status/1262639673043816448?s=20). See also S Kapoor, ‘This isn’t Europe’s “Hamilton” Moment’ POLITICO, 22 May 2020, https://www.politico.eu/article/ this-isnt-europes-hamilton-moment.

Epilogue  307 of taxing authority on the federal government in the US Constitution.19 By contrast, the borrowing at the heart of the new recovery fund would still be ultimately backed entirely by the fiscal mobilisation capacities of the Member States severally through their proportional obligations to the MFF. No doubt, the fund contemplated a series of new taxes (eg, on digital technology and single-use plastics) that would join customs duties and a portion of VAT as part of the EU’s ‘own resources’. But these ‘own resources’ are in fact imposed and collected nationally and would need the agreement of each NP.20 In other words, there is no EU tax collection service that ‘wears the EU badge’, so to speak, operating on the basis of the EU’s own autonomous legitimacy rather than that of the Member States. Given how the Member States have traditionally ‘jealously guard[ed] their taxation powers’,21 committing additional direct revenues to the EU budget may still prove controversial. Thus, in terms of the EU’s metabolic constitution, the crucial Rubicon would still not be crossed: there would be no Europeanisation of fiscal capacity. The financial underpinnings of the new recovery fund would still be entirely in keeping with how the Member States financed the response to the eurozone crisis over the prior decade – ultimately through their own fiscal capacities, whether directly or indirectly.22

II.  Legitimate-Compulsory Mobilisation and the Locus of ‘Legislative’ Power in European Governance This brings us squarely, then, to the third and I think most crucial dimension of modern administrative governance noted above: the locus of the capacity to mobilise human and fiscal resources in a legitimate and compulsory fashion. In the EU, the locus of this capacity is almost entirely national.23 The dependence of the EU’s metabolic constitution on NPs in turn raises some fundamental questions about the nature and limits of the project of European integration as a whole, to which we now must turn. In order to make a claim (whether normatively or descriptively) about any seeming ‘(im)balance’ between executive and legislative power in Europe – or about their potential ‘recalibration’, as this volume seeks to do – we must first discern, even if provisionally, what we think the boundary line is or should be between the two domains. What is the ‘essence’ of each and how is that essence reflected in the actual operation of modern governance, including in the EU?

19 See generally MM Edling, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (Barnet, Ebsco Publishing, 2003). 20 Indeed, any decision to extend the EU’s own resources under art 311 TFEU is subject to unanimity in the Council and further ‘shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements’. For further discussion, see the conclusion to this epilogue below. 21 J Brunsden and S Fleming, ‘Brussels Looks to New Taxes to Pay off Pandemic Recovery Debt’ Financial Times, 25 May 2020, https://www.ft.com/content/e4ca5b01-9b26-413a-bbb9-960db6b5914a. 22 For an overview, see Lindseth, ‘The Democratic Disconnect’ (n 3). Other elements of the pandemic emergency response package would be in a similar vein: European Investment Bank guarantees, the Commission proposal for Support to mitigate Unemployment Risks in an Emergency (SURE), as well as the European Stability Mechanism’s new Precautionary Covid Line (PCL). 23 Lindseth, ‘The Perils of “as if ” European Constitutionalism’ (n 3); Lindseth, ‘The Metabolic Constitution’ (n 3); Lindseth, ‘The Democratic Disconnect’ (n 3).

308  Peter L Lindseth In many respects, defining the domain of legislative power in an era of administrative governance has long been the more difficult challenge. Indeed, this volume stands as a testament to that reality, as each chapter in its own way seeks to argue for some rebalancing of functions in favour of elected assemblies (ie, legislatures). The difficulty in defining the legislative domain stems from the seemingly inexorable expansion of executive and technocratic power over the last century, driven by functional demands for regulation in order to address a whole range of socio-economic, geopolitical and environmental risks, among others. These functional demands have led to a vast expansion in executive and technocratic authority, which in turn has raised a persistent and puzzling question: what should be the residual domain of the legislature in this world of extensively delegated regulatory power? It is certainly the case that the legislature retains crucial oversight functions, scrutinising activities of the expanding executive and technocratic sphere, whose informational advantages cry out for legislative ‘police patrols’ in some way.24 Overcoming this information asymmetry through legislative scrutiny has indeed been a crucial feature of the ‘mediated legitimacy’ of executive and technocratic governance for the last 70 years.25 And unsurprisingly, the chapters in this volume focus on such mechanisms extensively. However, beyond scrutiny, it is also true, more fundamentally, that legislatures sometimes adopt things we call ‘laws’, ie, legal instruments containing norms of general and prospective application governing society or public institutions. But given the extensive scope of delegation in an era of administrative governance, it is quite difficult to claim that this normative function is the essence of legislative power today, at least as a general matter. Yes, certain constitutional systems do attempt to ‘reserve’ aspects of this normative function to the elected assembly – particularly in the domain of rights via a so-called Vorbehalt des Gesetzes or a riserva di legge.26 But such constitutional reserves are almost always partial, meaning that the power to make norms of general and prospective application is inevitably shared with the executive-technocratic (ie, administrative) sphere, as the latter carry out their delegated regulatory activities.27 Given these realities, what then is the essence of legislative power that cannot be delegated or shared in modern governance? The answer lies, I would suggest, in the metabolic constitution and the capacity to mobilise, in a legitimate and compulsory fashion, both human and fiscal resources on behalf of the polity in order to give lifeblood to the governing system as a whole.28 In a modern democratic state, this power is always reserved to the elected assembly, even if the power is sometimes regulated by the constitution or an international agreement. This means that the authority to mobilise fiscal or human resources in a compulsory fashion cannot be undertaken by the executive or technocratic sphere, at least 24 See, most famously, MD McCubbins and T Schwartz, ‘Congressional Oversight Overlooked: Police Patrols versus Fire Alarms’ in MD McCubbins and T Sullivan (eds), Congress: Structure and Policy (Cambridge, Cambridge University Press, 1987; originally published in (1984) 28 American Journal of Political Science 16). 25 The idea of mediated legitimacy is more extensively explored in PL Lindseth, ‘National Parliaments and Mediated Legitimacy in the EU: Theory and History’ in D Jančić (ed), National Parliaments after the Lisbon Treaty and the Euro Crisis: Resilience or Resignation? (Oxford, Oxford University Press, 2017). See also Lindseth, Power and Legitimacy (n 2); Lindseth, ‘The Paradox of Parliamentary Supremacy’ (n 2). 26 See, eg, G Piccirilli, La ‘riserva di legge’. Evoluzioni costituzionali, influenze sovrastatuali (Turin, Giappichelli, 2019). 27 Indeed, arts 34 and 37 of the Constitution of the French Fifth Republic go so far as to cast the regulatory power of the government as the default, and the legislative power of parliament as the exception. 28 See n 3 above and accompanying text.

Epilogue  309 not without some clearly defined legal basis in legislation. Only the elected assembly, representing the ‘demos’ as a whole, has the robust legitimacy to extract resources from society in a compulsory fashion and then redirect them towards public ends. The legislature may well do this under the guidance (and often at the direction) of the executive; nonetheless, the executive cannot effectuate its budgetary preferences or tax policies without commanding a majority vote in the legislature. In this sense, the capacity to mobilise resources in a legitimate and compulsory fashion is at the heart of the metabolic constitution of modern administrative governance. Perhaps more importantly for our purposes, as I have argued elsewhere, this metabolic constitution – grounded, as it ultimately is, in NPs – has similarly torqued the contours of European integration in crucial and fundamental ways.29 While Europeans have shown a great willingness to delegate extensive normative power to European institutions (including certain powers to regulate how Member States exercise their fiscal capacities), they have consistently excluded the delegation of the capacity to mobilise fiscal and human resources itself. The EU has remained almost entirely dependent on NPs to exercise this crucial power because that is where the robust democratic and constitutional legitimacy needed to exercise it continues to reside. This is an expression of what we can call the ‘power-legitimacy nexus’ in EU governance.30

III.  A Radical Question The impact of this power-legitimacy nexus on the metabolic constitution of European integration raises a fundamental question about the nature of the institutional system of the EU as a whole. Semantically speaking, given how the EU is almost entirely dependent on legitimate compulsory mobilisation at the national level, is it right even to speak of the EU as possessing ‘legislative’ power, at least in the most robust sense of the term? I fully recognise that this is a radical question, one that goes deeply against the grain of the now-conventional ‘as if ’ constitutional framing that legal scholars generally use to analyse and critique EU public law.31 Such a question would even seem bizarre given key features of the EU’s institutional system, notably the existence of an elected assembly – the European Parliament (EP) – as well as that body’s participation in something called the ‘ordinary legislative procedure’ (OLP)32 in making rules of general and prospective application to govern European integration. The EP and the OLP are so-named for a reason: because they are generally recognised to be the focal points of ‘legislative’ power in the European system.33 And yet, might this labelling be misleading? Might both the EP and the OLP simply serve to inject an electoral component into a system that is fundamentally executive-technocratic

29 See, eg, Lindseth, ‘The Perils of “as if ” European Constitutionalism’ (n 3); Lindseth, ‘The Metabolic Constitution’ (n 3); Lindseth, ‘The Democratic Disconnect’ (n 3). 30 Lindseth, ‘The Democratic Disconnect’ (n 3). 31 Lindseth, ‘The Perils of “as if ” European Constitutionalism’ (n 3). 32 Article 294 TFEU. 33 See, eg, M Urban, ch 2 in this volume.

310  Peter L Lindseth (ie administrative) in character?34 Just because the EU has been delegated extensive powers to make norms of a general and prospective character need not mean that the EU possesses, or can exercise, genuinely ‘legislative’ power; it might just be a supranational agency exercising such power (after all, the EU does not actually produce ‘laws’, but only ‘regulations’, ‘directives’ and ‘decisions’).35 The continued locus of legitimate-compulsory mobilisation power at the national level – even if subject to constraints imposed by the demands of the eurozone crisis over the course of the last decade36 – suggests that the EU is exercising something other than ‘legislative’ power. This is not, I would maintain, just an academic debate about labels and semantics. Rather, the reluctance of Europeans to establish a robust EU fiscal capacity of its own may point us towards a hard limit in the integration process, one whose presence is proving extraordinarily difficult to transcend. The pandemic may indeed be a ‘moment of truth’ and creating genuine fiscal mobilisation powers – hence genuine legislative power – may well be in the offing. Time will tell. But if this Rubicon is not in fact crossed under the extreme pressures of this crisis, then one is left to wonder: is the very discussion of ‘legislative’ power at the EU level merely part of an aspirational, ‘as if ’ constitutional discourse that misleads us about the nature of the European system and what it can realistically achieve?37 I will return to these questions in the conclusion to this epilogue. But for now, it is with these various fundamental questions in mind, radical though they may be, that I now turn to a discussion of the many excellent contributions to this volume.

IV.  Part I: Executive–Legislative Relations from a Multi-level Perspective The book opens with a forthright normative critique by Peter Bursens of the current state of EU governance as an ‘incomplete and underperforming representative democracy’. He stresses the ‘importance attributed to parliamentary representation in legitimising the EU’ and thus is profoundly disappointed by ‘the dominance of executive actors, at each of the governmental layers’. This disappointment is no doubt justified. But the analysis might be subtly shifted, at the supranational level at least, if we avoided framing the EU as an autonomously constitutional system (or ‘representative democracy’) in the making. Rather, as suggested above, it might be better viewed as a sub-constitutional extension of executivetechnocratic governance now taken to the supranational level.

34 For the foundations of this alternative view, see generally PL Lindseth, ‘Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community’ (1999) 99 Columbia Law Review 628. For its elaboration in historical terms, see Lindseth, Power and Legitimacy (n 2). For another analysis that raises a similar question, see AE Stie, Democratic Decision-Making in the EU: Technocracy in Disguise? (Abingdon, Routledge, 2012). 35 Article 288 TFEU. However, it should be added that the treaties are replete with references to ‘legislative acts’, although these references are not substantive, but rather point only to the procedure by which the legal act in question shall be adopted. See art 289(3) TFEU (‘Legal acts adopted by legislative procedure shall constitute legislative acts’). The most famous such procedure, of course, is the OLP under art 294 TFEU. 36 See C Wiesner, ch 13 in this volume. See also n 8 above and accompanying text. 37 See, eg, Lindseth, ‘The Perils of “as if ” European Constitutionalism’ (n 3).

Epilogue  311 Such a framing need not – indeed, should not – insulate the EU from the sort of normative critique that Bursens otherwise cogently advances. Bursens is absolutely correct when he argues that ‘the EU ultimately needs to base its legitimacy on the Member States’ democratic institutions’. He is further correct when he pleads ‘for giving Member State parliaments a more prominent place in the multi-level system of the EU’. But his effort to translate Rodrik’s famous ‘political trilemma of the world economy’38 into the context of European integration may well suggest limitations in the ‘multi-level parliamentarisation’ strategy he advocates. To understand these limitations, we need to take a closer look at Rodrik’s model. This model tells us that, as between maintaining national sovereignty, preserving democratic politics and pursuing deep economic integration, ‘we can combine any two of the three, but never have all three simultaneously and in full’.39 However, considerable nuance is necessary to apply this model to the EU case. Most importantly, one needs to reconcile integration’s extensive delegation of regulatory power to the supranational level with the retention by NPs of legitimate-compulsory mobilisation powers. The best way to do so, I suggest, is through an appreciation of the aforementioned power-legitimacy nexus,40 as well as how this nexus has shaped the balance between democracy, sovereignty and economic integration in the EU context. To achieve this reconciliation, integration necessarily built on what we can call, in historical terms, the ‘postwar constitutional settlement of administrative governance’.41 When applied to realities of European integration, Rodrik’s trilemma would arguably look something like Figure 17.1. Figure 17.1  Rodrik’s trilemma applied to the EU

Because the EU’s ability to achieve autonomous democratic and constitutional legitimacy is limited (alas, the ever-present ‘no-demos problem’), it cannot combine supranationalised democratic politics and deep economic integration as it aspires to do (the right prong of the model). Thus, Bursens is correct to be sceptical about the ‘federalisation’ strategy, which clearly seeks to operate along that right prong. However, my concern with Bursens’ 38 For a succinct overview of this trilemma, see Dani Rodrik, ‘The Inescapable Trilemma of the World Economy’, 27 June 2007, http://rodrik.typepad.com/dani_rodriks_weblog/2007/06/the-inescapable.html. 39 ibid. 40 See n 30 above and accompanying text. 41 This is of course the central thesis of Lindseth, Power and Legitimacy (n 2).

312  Peter L Lindseth ‘multi-level parliamentarisation’ strategy is that it seems to aim for, in effect, a kind of ‘federalisation’ through the back door, especially with regard to a new chamber at the EU level composed of representatives from NPs. Such proposals in fact have a long history, but every time they have been advanced, NPs have consistently resisted them.42 From an NP perspective, such proposals entail an unacceptable constitutional quid pro quo – that is, a new centralisation of specifically ‘parliamentary’ legitimacy within the EU, thus fundamentally undermining the role of NPs at the national level. In this sense, these proposals operate just like federalisation: they aim to give supranational institutions a strong legitimacy on a par with the constitutional bodies of the Member States. Bursens’ strategy also raises other concerns. The EU operates primarily along the left prong of Rodrik’s model, through the delegation of regulatory power to supranational ‘pre-commitment’ institutions, both technocratic (eg, the Commission and the ECB) and juristocratic (the Court of Justice of the European Union (CJEU)).43 The very purpose of these institutions is to police the Member States’ fulfilment of their legal commitments to each other in the treaties (hence mobilising national sovereignty the in service of deep economic integration). However, according to the ‘as if ’ constitutionalism that has traditionally dominated EU legal discourse, institutions along the left prong should be answerable, in ‘democratic’ terms, only to the EP (which sees itself as a supranational pre-commitment institution as well).44 This insistence, I would suggest, points to a source of resistance against the role that NPs are supposed to play in Bursens’ favoured version of ‘multi-level parliamentarisation’. To be clear, his proposal to augment the authority of NPs in European affairs is absolutely aimed in the right direction. But while NPs certainly can scrutinise their national executive and technocratic actors at the supranational level, they are not wellpositioned, functionally, to scrutinise these supranational pre-commitment institutions, at least not directly. In the end, the necessary reconciliation of supranational regulatory power and national democratic and constitutional legitimacy must occur along the bottom branch of the trilemma, albeit with some adjustments not properly accounted for in Rodrik’s original, or Bursens’ alternative, version of the model. National sovereignty and democratic politics are preserved, first and foremost, through the retention of legitimate-compulsory mobilisation powers in NPs, even as a significant degree of economic integration is achieved through the delegation of regulatory power to supranational technocratic and juristocratic institutions (the curved line bending upwards towards the goal of deeper integration). The operation of these supranational bodies is then subjected – consistent with the postwar constitutional settlement – both to substantive limits on the scope of power delegable to the EU level (most importantly, but not exclusively, regarding legitimate-compulsory mobilisation powers) as well as procedural constraints typical of modern administrative governance

42 For details of this history, see ibid 230–35. 43 For more detail on this ‘pre-commitment’ strategy, see nn 62–65 below and accompanying text. 44 See, eg, this passage from EP Mid-Term Report (2013–14): Report on ‘Interparliamentary relations between the European Parliament and national Parliaments under the Treaty of Lisbon’ 2009–14 European Union, 11 (as quoted in KL Meissner and G Rosén, ch 11 in this volume): ‘[A] number of NPs are frustrated by their insufficient involvement in European affairs … These NPs are putting pressure for a greater involvement in the European decision-making process, in particular the legislative process, with or without Treaty changes. As a result, the EP delegation, representing an EU institution, had to insist time and again that the EU Treaties have to be respected. It also had to remind NPs … [that] the adopted texts have to respect the role and prerogatives of the EP as a Union institution.’

Epilogue  313 (eg, transparency, participation and reason-giving obligations to promote legitimating oversight). These mechanisms allow national constitutional bodies – legislative, executive and judicial – to serve their respective roles as instruments of mediated legitimacy with regard to supranationally delegated power.45 However, the problem is that European judges, lawyers and law professors generally view this entire set-up as the foundations of an autonomously ‘constitutional’ system in the making. As a consequence, they subject European governance to open-endedly constitutional rather than more restrictively executive-technocratic (ie, administrative) standards of analysis.46 This ‘as if ’ constitutional mindset overlooks how national institutions are increasingly constrained in the exercise of their own constitutional authority (the left prong of Rodrik’s model), but supranational institutions are unable to fill the void because Europeans refuse to endow them with the essential attribute of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion (the as-yet-impossible-to-attain right prong of Rodrik’s model).47 This ‘as if ’ constitutional mindset is in fact reflected in many of this volume’s contributions. A good example is the chapter by Marco Urban, which straightforwardly casts the EP as embodying ‘the legislative power’ in the European system. From this perspective, as he elaborates, the EU suffers from a ‘democratic deficit’ that has been reduced over time by progressively greater empowerment of the EP – first via inter-institutional agreements (IIAs) and then in the incorporation of these reforms into the treaties. However, the notion of a democratic deficit suggests that the EU’s primary legitimacy challenge is supranational, resulting from a shortfall within EU institutions and processes, which should be addressed through institutional engineering at the EU level. Reforms of this sort may be attractive for a whole range of instrumental and normative reasons; nonetheless, in reality, ‘deficit’-focused changes in EU public law have consistently fallen short of providing genuinely democratic legitimation to the EU (certainly not sufficient to support the supranationalisation of fiscal capacity). For this reason, the EU’s legitimacy challenges flow primarily from a ‘democratic disconnect’, not a ‘democratic deficit’.48 The idea of disconnection better captures the dynamics at the heart of European governance, in which functional demands have compelled the delegation of regulatory power to supranational institutions even as the experience of democratic self-government has remained stubbornly national or even sub-national. From the perspective of a democratic disconnect, the challenge in the EU is to develop mechanisms to channel the more robust legitimacy of national institutions to the supranational level (something rightly emphasised by Bursens in his chapter in this volume). European public law has in fact come to rely on precisely this sort of mediated legitimacy, albeit often sub silencio, even as the dominant ‘as if ’ constitutional discourse has persistently, if wrongly, focused on fixes to the purported democratic deficit.49

45 See n 25 above and accompanying text. 46 On the question of standards of analysis, see most famously G Majone, ‘Europe’s “Democratic Deficit”: The Question of Standards’ (1998) 4 European Law Journal 5. See also Lindseth, ‘Democratic Legitimacy and the Administrative Character of Supranationalism’ (n 34). 47 I will return to the discussion of this core contradiction in ‘as if ’ constitutionalism in the EU in the conclusion to this epilogue below. 48 Lindseth, Power and Legitimacy (n 2) 2, 10, 12, 31, 234, 247, 261. See also PL Lindseth, ‘Delegation is Dead, Long Live Delegation: Managing the Democratic Disconnect in the European Market-Polity’ in C Joerges and R Dehousse (eds), Good Governance in Europe’s Integrated Market (Oxford, Oxford University Press, 2002). 49 See generally Lindseth, Power and Legitimacy (n 2).

314  Peter L Lindseth The chapter by Elena Griglio focuses on perhaps the most important of those mechanisms of mediated legitimacy – the respective roles of the Council of the European Union and the European Council in EU governance. She finds, unsurprisingly, that the EP enjoys comparatively weak powers to scrutinise these bodies, at least formally, precisely because their ‘accountability intensively relies on the national level’. However, as she also points out, NP scrutiny often varies in intensity and regularity among the Member States, which leaves much to be desired as a practical matter. Her proposed solution to ‘thicken the chain of accountability’ – generalising existing sectoral models of interparliamentary cooperation (IPC) – strikes me as sensible and perhaps even achievable, although also relatively marginal and technical. Expanded forms of IPC are unlikely to achieve the sort of collective accountability of the Council or the European Council as supranational bodies that remains for Griglio a major source of frustration. Such collective accountability is unlikely to be realised, I would suggest, unless and until the EU itself gains both the power and legitimacy to exercise compulsory mobilisation powers, both human and fiscal, at a European level. Only then will the Council and the European Council need to take the EP fully seriously as a mechanism of collective scrutiny. In the meantime, the EP’s scrutiny powers will necessarily focus on the technocratic regulatory power exercised by the Commission as to so-called ‘delegated’ and ‘implementing’ acts. In their chapter, Thomas Christiansen and Sabina Lange focus on this dimension of EU governance, tracing the evolution from the old Member State-dominated comitology system through the progressive increase in the EP’s role, culminating in the reforms of the Lisbon Treaty. As Christiansen and Lange note: ‘Despite the relative obscurity and the often highly technical nature of these acts, the framework governing [these] powers in the EU has been a frequent site of inter-institutional tensions.’ This might be due to the fact that, as noted above, this sort of technocratic power cries out for ‘police patrols’ by an elected assembly, something which the Commission might otherwise want to resist.50 However, this may be an instance in which the ‘as if ’ constitutional mindset – casting the EP as ‘the legislative power’ – has served European public law quite well (although this scrutiny power is shared with the other ‘legislative’ branch in the EU – the Council). But this role has also accelerated a not-insignificant process of bureaucratisation within the EP itself, particularly in terms of staff and committee capacity. Thus, while the EP is undoubtedly playing a classically ‘legislative’ oversight role in form, in substance it has arguably taken on the character of an elected component in what is otherwise a highly technocratic rule-making process.51

V.  Part II: Executive–Legislative (Im)balance within Member States The second part of the volume turns to the question of the role of NPs in the integration process. We begin with the chapters by Diane Fromage and by Robert Zbíral and Jan Grinc, respectively. These two contributions focus on one of the few dimensions of European public 50 See n 24 above and accompanying text. 51 Again, cf Lindseth, ‘Democratic Legitimacy and the Administrative Character of Supranationalism’ (n 34); Stie (n 34).

Epilogue  315 law in which NPs were originally supposed to play a key role: the transposition of European directives into national law. To the extent that such directives fell into the legislative domain on the national level, the treaties necessarily contemplated a role for NPs (and indeed, the empirical findings of Zbíral and Grinc suggest that this vision has been largely realised: even for countries that do not have a clearly demarcated constitutional boundary between law and regulation,52 ‘[h]igher salience seemed to be positively correlated to parliamentary transposition’).53 Moreover, given that directives were only supposed to be binding as to the result to be achieved, the treaties in theory contemplated some measure of discretion for NPs in the transposition of those directives that fell within their domain. Of course, the leading role of national executives under the postwar constitutional settlement meant that, as a matter of practical politics at least, this discretion would be constrained in many national systems. Such national-executive pre-eminence, however, received a helpful boost from European judges in the jurisprudence on the direct effect of directives beginning in 1974.54 The conditions that this jurisprudence laid down – that the directive be unambiguous in its terms and the time limit for implementation had passed – simply gave national executives in the Council (the then-dominant legislative body in the European system), aided by the Commission in making the proposal, the opportunity to impose a collective legislative decision on the national parliament. This became possible under the doctrine of direct effect despite the limited, post hoc powers of transposition that the NPs were supposed to enjoy under the old Article 189 (now Article 288 of the Treaty on the Functioning of the European Union (TFEU)). However, for the purposes of this volume, this is all ancient history. Direct effect is such a well-established part of the European ‘constitution’ that it need not be recalled, even if it clearly has a bearing on executive–legislative relations. To her credit, Diane Fromage does not ignore the role of the Court in deepening this (im)balance in the directives space. However, she discusses it only as part of the current (post-Lisbon) incentive structure to discipline NPs and Member States more generally that drag their feet in the transposition process. In this way, she rightly points out that the Court is part of an overall dynamic that further contributes to the ‘marginalisation of parliaments to the benefits of governments’. However, the Court’s contribution to that dynamic has much deeper roots, and it cannot really be understood apart from direct effect. Moreover, the development of this doctrine in turn has had a bearing on the descriptive and normative story that Fromage’s chapter tells: the beneficial (but arguably incomplete) expansion of the role of NPs, not post hoc through transposition, but ex ante through the involvement in the European ‘legislative’ process itself. The arc of this story is well known – first with the establishment, in the late 1970s and onwards, of European Affairs Committees (EACs), then the development in the 1980s and 1990s of interparliamentary cooperation mechanisms (COSAC), and finally the effort in the 2000s and 2010s to engage NPs directly as instruments of EU legitimation via participation in the drafting process (not just via the Early Warning System but also Political Dialogue etc).55

52 France being the leading example of a country that clearly does. See n 27 above. 53 The outlier in this finding was the UK, leading Zbíral and Grinc to ‘wonder how the peculiarly weak position of the UK Parliament in transposition contributed to the Brexit’. On this very point, see K Wright, ch 8 in this volume. 54 Case 41/74 Van Duyn v Home Office [1974] ECR 1337. 55 See generally Lindseth, Power and Legitimacy (n 2) ch 5.

316  Peter L Lindseth Fromage touches on elements of this story nicely; nonetheless, she misses how it can be traced, at least in part, to the increasing frustration of previously quiescent NPs in the late 1970s with ‘directives that are in reality regulations’.56 Inspired by the scrutiny models of new entrants like Denmark and the UK, other parliaments (eg, the otherwise highly marginalised French National Assembly) began pushing for the establishment of EACs of their own. And the rest, as we say, is history. One of the most significant benefits of this overall process has been to facilitate the flow of information to NPs on EU matters in ways that are independent of national governments. Reducing such information asymmetries has been crucial even for those NPs (eg, the UK Parliament) whose institutional position, and hence scrutiny rights, might otherwise be limited in national law.57 In this regard, the final two chapters in Part II of the volume – Lupo’s analysis of the Italian case over several decades and Wright’s discussion of the experience of the British parliament during the Brexit saga – present an interesting study in contrasts. The story told by Nicola Lupo is at once both deeply familiar and yet still utterly foreign. What is familiar, or at least appreciated by even casual non-Italian observers, is the notorious centrality of parliament in the Italian form of government under the 1948 constitution. Therefore, it is somewhat ironic that the constituent assembly that drafted this constitution apparently initially sought to avoid ‘assembly government’ on the model of the French Third Republic. Lupo delicately characterises the result as a ‘mildly rationalised’ parliamentary system; however, as he also acknowledges, this rationalisation was ‘reflected in only a very limited sense in the constitutional text’. The result, in fact, was ‘a rather weak and unstable executive’, something Italians tolerated for nearly half a century, until the desire for a more disciplined form of parliamentarism gained some momentum in the early 1990s. Unfortunately, bridging the gap between desire and actual outcome was difficult in the context of Italian politics. Constitutional revision repeatedly failed, thus forcing recourse to electoral reforms as a fallback, in the hope that these would yield more stable majorities and hence more stable governments. What followed was a series of nearly incomprehensible (to an outsider at least) voting regimes – ‘Mattarellum’, ‘Porcellum’, ‘Italicum’ and ‘Rosatellum’ – which only serve to remind us how truly idiosyncratic the Italian political system could be. Against this backdrop, the sole driver of augmented executive power with any real traction in Italy was European integration. But as Lupo recounts, this was ‘mainly through a de facto process that was only partially recognised at the level of ordinary legislation’. That is no doubt true: despite the centrality of parliament in the Italian system, for many decades Italian MPs generally gave governments free rein in European matters, regarding that domain as an aspect of international relations.58 Nonetheless, I still might push back on the ‘de facto’ claim a bit, fully aware that Lupo is vastly more expert on this question than I am. I would simply recall that the 1948 Constitution included provisions on delegated legislation (Article 76) that would repeatedly provide the government with crucial tools in Italy’s efforts to meet its European obligations. Most importantly, they provided the basis for the 56 J-D Nuttens and F Sicard, Assemblées Parlementaires et Organisations Européennes (Paris, La Documentation française, 2000) 63 (Statement of Jean Foyer, ‘Extraits du débat parlementaire du 30 novembre 1978 sur la transposition de la sixième directive sur la TVA’). 57 Lindseth, Power and Legitimacy (n 2) 204. 58 ibid 205–06.

Epilogue  317 omnibus laws that the Italian Parliament would periodically use to delegate authority to the government to transpose large numbers of European directives into domestic law.59 If being part of Europe aided executive power in Italy (even if only marginally), one might logically expect that Britain’s decision to leave would facilitate a ‘reparliamentarisation’ in the UK. The chapter by Kathryn Wright stresses three tools used by the UK government to resist a re-assertive Parliament in the Brexit process: the prerogative power over treaties and international relations; agenda-setting and control over the parliamentary timetable; and the power to make secondary legislation. Backbenchers of both parties struggled mightily against all three techniques over the course of 2019. In this effort, they were aided by the fact that the government lacked a majority in the House of Commons, which created greater room for assertions of parliamentary autonomy. But when the government was returned with a stable majority in the General Election of December 2019, the status quo of executive dominance largely returned. The primary exception was the continuation of increased parliamentary scrutiny of secondary legislation under the EU (Withdrawal) Act 2018. But as Wright stresses, the rights of heightened scrutiny of this statute were arguably exceptional and did ‘not extend to secondary legislation under other statutes’. This perhaps simply reminds us that ‘[t]he process of European integration [i]s not the cause of deparliamentarization but rather [i]s the beneficiary of a pre-existing transformation of national systems in a decidedly executive and technocratic direction’ under the postwar constitutional settlement.60

VI.  Part III: Executive–Legislative (Im)Balance and Variations across Policy Areas The contributions in Part III fall into three distinct groups. The first – including chapters by Márton, Fasone and Romaniello, Meissner and Rosén, and Weiß – all concern trade policy and its impact on executive–legislative relations at the supranational, national and even subnational levels. The second comprises only one chapter – that by Wiesner – which focuses on the impact of the eurozone crisis on representative democracy, both as to supranational surveillance of national fiscal capacities as well as the intergovernmental regime to extend credit to Member States in need, subject to strict conditionality. The third group – the chapters by Herranz-Surrallés, Butler and Tacea, respectively – focuses on former ‘second’ and ‘third pillar’ policy areas: the Common Security and Defence Policy (CSDP), the Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA). I will take each of these chapters in turn. Among the trade-focused chapters, the contribution by Péter Márton argues that Member State governments (if not their parliaments) ‘instrumentalised’ EP empowerment as means of legitimising the continuation of their preferred rule-based approach to trade policy. This strategy, he asserts, was a response to the public contestation over whether to include investor-state dispute settlement (ISDS) mechanisms in the (ultimately successful) conclusion of the Comprehensive Economic Trade Agreement (CETA) between the EU

59 ibid 60 ibid

206. 202–03.

318  Peter L Lindseth and Canada. In the face of this contestation, the Commission and the Member States in part turned to the EP, via an increase in the latter’s informational and participation rights as provided in the Lisbon Treaty and then implemented by IIAs. However, the story that Márton tells does not seem to be ‘clearly a success story for the EP as an institution’, as he maintains. The story also includes an important push towards empowering NPs, notably by a last-minute effort to characterise CETA as a mixed agreement, thus requiring NP approval. By Márton’s own admission: ‘Involving the EP had apparently not helped’ in diffusing the public contestation and resistance ‘and, as a result [the Commission and the Member States] needed to shore-up the legitimacy of CETA to save it by symbolically passing it down to the national level’. Yet, what followed was the infamous Wallonia episode, whose seeming absurdity – a regional parliament interfering in a national government’s ability to conclude an international agreement negotiated by the supranational EU – simply served to remind everyone of the complex layering of institutional power and legitimacy in the European system. Nevertheless, this episode also gave impetus to the CJEU’s later ruling in Opinion 2/15 on the EU–Singapore Free Trade Agreement,61 confirming exclusive EU competence over trade policy but excepting, as Márton acknowledges, ‘investment arbitration and portfolio investment, which [the Court] effectively renationalised’. Thus, rather than a clear victory for the EP, this case study shows a continuing tug of war between the national and the supranational levels for control over dimensions of this crucial policy domain in the face of deeper socio-political contestation and questioning. The chapter by Cristina Fasone and Maria Romaniello covers much the same ground, but from the angle of NPs. It tells a story of NPs, as well as of (certain) regional parliaments (RPs) (again, the infamous Walloon Assembly), struggling for greater information about and participation in negotiations in this otherwise heavily executive and technocratic policy area. However, rather than presenting the role of NPs and RPs as a bug in the system (the arguable implication of Márton), Fasone and Romaniello present it as a feature, and a democracy-reinforcing one at that. The aim, as these authors recount, has been ‘more effective scrutiny of the national governments and EU institutions’ in trade policy, and in that quest, NPs were ‘to a large extent successful’, at least insofar as mixed agreements have been concerned. Using rights derived from domestic constitutional structures, NPs were able to increase their ‘influence on the governments on the ex ante stage of the negotiation’ as well as in the ‘conclusion of trade agreements’. Moreover, the importance of these domestic constitutional structures once again brings to the fore the complex layering of institutional power and legitimacy in the European system. In this effort, NPs were also able to use the process of interparliamentary cooperation – both among themselves and, perhaps more importantly, with the EP – in order to reduce information asymmetries and increase their influence. From one perspective, the NPs have successfully piggy-backed on the strengthened information and participation rights of the EP on trade agreements under the Lisbon Treaty and associated IIAs. But this dynamic – which is further explored in the chapter by Katharina Meissner and Guri Rosén – also arguably suggests something deeper about the integration process. As is well known, integration functionally depends on the delegation of power to supranational institutions (in the case of trade, power delegated to the Commission to conduct

61 Opinion

2/15 of the Court (Singapore) [2017] ECLI:EU:C:2016:992.

Epilogue  319 international negotiations, subject to the oversight and consent by a supranational assembly, the EP). Nonetheless, this legal framework operates in tension with a more fundamental socio-political reality in the EU, in which robust democratic and constitutional legitimacy, for better or worse, remains stubbornly national. Consequently, the dominance of supranational bodies in this domain feeds pressures to incorporate NPs into the oversight process even where their involvement would never be favoured on functional, technical or efficiency grounds alone. ‘The discrepancy between ought and is’, Meissner and Rosén quite rightly point out, ‘leads to a need for enhanced legitimacy’ – particularly with regard to trade negotiations of high political salience. But the ‘ought’ here is the functional claims to exclusive control made by EU institutions; the ‘is’ is the democratic legitimacy still concentrated on the national level. As the chapter by Wolfgang Weiß quite nicely demonstrates, the disconnect between national democratic legitimacy and the functional dispersion of power can be great, stretching not just to the supranational but also to the international level as well. Weiß focuses on the actual operation rather than negotiation and conclusion of trade agreements, and more specifically on the ad hoc implementation bodies that these agreements create. Weiß provides a quite detailed normative analysis for why unconstrained and unsupervised delegation of power to ad hoc treaty bodies under trade agreements operates in deep tension with democratic legitimacy. However, the problem is that Weiß’s argument uncritically assumes that the EP is the possessor of that legitimacy. This is a classic example of the ‘as if ’ constitutional approach to European public law in action, which, in its focus on the EP, ignores how the democratic-legitimacy concerns apply with even greater force to NPs. No doubt, the EP retains functional advantages over NPs, just as the CJEU retains such advantages over national courts. But the locus of democratic and constitutional legitimacy in a system depends as much on historical, political and cultural factors as it does on functional necessity. Insisting on functional advantage alone – perhaps combined with a legality argument based on pacta sunt servanda – is simply a formula for further backlash and contestation.62 Indeed, on the question of the locus of democratic and constitutional legitimacy in the European system, it is important to recall why supranational governance is structured as it is. Although dressed up in the language of ‘ever closer union’, in principal-agent terms, the purpose of supranational delegation – to the Commission, the Court, the EP etc – is what is typically called ‘pre-commitment’. Empowering supranational agents is a means of overcoming obstacles to effective coordination and cooperation among the Member States, preventing ‘principal drift’ and thus ensuring the credibility of their mutual legal commitments to each other. However, this strategy comes with a built-in tension: supranational policing of Member State compliance can often be intrusive and painful, in seeming derogation of sovereignty. Normally, this intrusion can be justified in democratic terms if the supranational policing can reasonably be traced back to prior sovereign legal commitments (this is certainly true, for example, of Member States’ commitments to respect and preserve, inter alia, democracy and the rule of law at the national level).63 But if not – ie, if the intrusion results from normative claims made by the supranational institutions themselves without firm grounding in the treaties – then the delegation is arguably being abused. In the 62 cf PL Lindseth, ‘Theorizing Backlash: Supranational Governance and International Investment Law and Arbitration in Comparative Perspective’ (2020) 21 Journal of World Investment & Trade 34. 63 See art 2 TEU.

320  Peter L Lindseth worst-case scenario, what can occur is a full-blown ‘principal-agent inversion’, in which the erstwhile supranational agent claims the mantel of the principal in the system.64 This is the essence of ‘as if ’ constitutionalism in the EU, at least when it ratchets the functional advantages of pre-commitment (most importantly, uniformity) into a constitutional principle of supremacy, albeit without the necessary socio-political foundations to support it.65 To gain a better appreciation of the slippery slope between pre-commitment and principal-agent inversion, we can turn to the pivotal chapter of Claudia Wiesner on the EU’s response to the eurozone crisis, both in its supranational and intergovernmental dimensions. The supranational dimension involved the reinforcement of Commission surveillance over core budgetary prerogatives of the Member States (taxing, spending and borrowing). The legal basis was the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG) – the Fiscal Compact – as well as the ‘six-pack’ and ‘two-pack’ legislative packages. However, it is important to stress that while the surveillance created by this regime seems to cut close to the core prerogatives of NPs in terms of the exercise of fiscal powers, it has not really altered integration’s pre-commitment system in any fundamental respect. The Member States have simply once again agreed to delegate authority to supranational agents to police their mutual legal commitments – in this case regarding fiscal discipline. The democratic legitimation for those commitments (ultimately through ratification of the Fiscal Compact itself) have remained fundamentally national. Moreover, the supranational surveillance regime, once in operation, has proven to be quite lenient (as Wiesner stresses, no sanctions ever been imposed for non-compliance – an indication perhaps of the delicate nature of this form of supranational oversight). Finally, as Davor Jančić has shown in his work, even with the lenient approach, many NPs have nonetheless demanded even more formal and informal ‘tools to scrutinise EU decisions that impinge on their fiscal autonomy’.66 However, the intergovernmental dimension of the crisis response has proven to be much harsher, involving a considerable risk of principal-agent inversion. The emergency lending regime is broadly under the supervision of the Eurogroup, the informal body composed of eurozone finance ministers. Its key institutional innovation is the European Stability Mechanism (ESM), a lending entity established under an intergovernmental treaty – the ESM Treaty – and backed by capital contributions from the respective eurozone Member States severally. Yet, lending is only forthcoming if the Member State in question agrees to a detailed set of conditions – often involving painful commitments to austerity and other fundamental reforms – that are memorialised in a memorandum of understanding (MOU). However, to negotiate and enforce the terms of the MOU, the ESM delegates this authority to the so-called Troika, composed of representatives of the European Commission, the ECB and the International Monetary Fund (IMF). One might argue that pre-commitment also forms the basis of this regime; after all, ratification of the ESM Treaty is a condition of eurozone membership, and the treaty specifically requires strict conditionality for financial support67 and further specifies that it may take the form of an ‘macro-economic adjustment programme’68 set out in the MOU negotiated and enforced by the Troika. Who could

64 For more detail on ‘principal-agent inversion’, see Lindseth (n 62); Lindseth, ‘The Democratic Disconnect’ (n 3).

65 Lindseth,

‘The Perils of “as if ” European Constitutionalism’ (n 3). Jančić, ‘National Parliaments and EU Fiscal Integration’ (2016) 22 European Law Journal 225. 67 ESM Treaty, art 3. 68 ibid art 12. 66 D

Epilogue  321 possibly complain, particularly where the alternative would be a disorderly default and economic collapse? The problem is not, as Wiesner’s chapter ably summarises, to be found solely in the variable (and often surprisingly limited) roles that debtor-country NPs have played at each stage in this process. Nor is the problem, as also stressed by Wiesner, merely derived from the opacity of a lending regime dominated by an executive Eurogroup, as well as a technocratic Commission, ECB and IMF. Instead, perhaps more importantly, it is rooted in the lack of substantive standards or procedural constraints on the scope of discretion that these executive and technocratic actors exercise under this regime. We should recall that just because delegated normative power is broadly tolerated in administrative governance does not mean that there are no constitutional constraints on delegation.69 Delegation can never be so extensive as to constitute a complete abdication of democratic rights of the NP. The irony here is that the defence of this core ‘principle of democracy’ (Demokratieprinzip) has fallen to the courts of creditor countries, like Germany, in defence of the rights of their domestic NPs in providing funding to this regime.70 This German jurisprudence, in my view, in fact expresses general principles regarding the relationship between NPs and European governance that should be available to any national high court in Europe, not just in the ‘core’ but also in the ‘periphery’. Jurisprudentially, what is good for the German ‘goose’ should also be good for the Greek, Irish or Portuguese ‘gander’. But the problem with this regime goes deeper still. We should recall what then-German Finance Minister Wolfgang Schäuble was reported to have said in a Eurogroup meeting in 2015 after the Syriza victory cast doubt on the terms of the existing Greek adjustment programme: ‘we can’t possibly allow an election to change anything. Because we have elections all the time, there are 19 of us, if every time there was an election and something changed, the contracts between us wouldn’t mean anything’.71 This is pre-commitment taken to an unacceptably harsh extreme. But more tellingly, Jean-Claude Juncker, the thenCommission President, famously proclaimed in response to the Syriza election victory: ‘Il ne peut y avoir de choix démocratique contre les traités européens’ – ‘There can be no democratic choice against the European treaties’.72 This comes dangerously close to principal-agent inversion – or, perhaps, it is simply ‘as if ’ constitutionalism also taken to its own logical extreme. This brings us back, then, to the core contradiction in this ‘as if ’ constitutional interpretation of European governance, which I alluded to above.73 National institutions are 69 This is one of the core lessons of the ‘postwar constitutional settlement of administrative governance’. See Lindseth, ‘The Paradox of Parliamentary Supremacy’ (n 2). 70 See, eg, Greek Bailout Decision, 2 BvR 987/10, 2 BvR 1485/10, 2 BvR 1099/10, 7 September 2011, www. bundesverfassungsgericht.de/pressemitteilungen/bvg11-055en.html; Bundestag Right of Participation/EFSF, 2 BvE 8/11, 28 February 2012, www.bundesverfassungsgericht.de/pressemitteilungen/bvg12-014en.html; Bundestag Right of Information ESM/Euro Plus Pact, 2 BvE 4/11, 19 June 2012, www.bundesverfassungsgericht.de/en/press/ bvg12-042en.html; Rejection of Temporary Injunctions ESM/Fiscal Compact, 2 BvR 1390/12, 2 BvR 1421/12, 2 BvR 1438/12, 2 BvR 1439/12, 2 BvR 1440/12, 2 BvE 6/12, 12 September 2012, www.bundesverfassungsgericht.de/en/ press/bvg12-067en.html. 71 Y Varoufakis, ‘Interview: Our Battle to Save Greece’ New Statesman, 13 July 2015, http://www.newstatesman. com/world-affairs/2015/07/yanis-varoufakis-full-transcript-our-battle-save-greece. 72 J-J Mevel, ‘Jean-Claude Juncker: “La Grèce doit respecter l’Europe”’ Le Figaro, 28 January 2015, http://www. lefigaro.fr/international/2015/01/28/01003-20150128ARTFIG00490-jean-claude-juncker-la-grece-doit-respecterl-europe.php. 73 See nn 46–47 above and accompanying text.

322  Peter L Lindseth increasingly constrained in the exercise of their own constitutional authority, but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. During the eurozone crisis, this led to a strategy in which all substantial costs had to be borne by the debtor states themselves through increased debt burdens, austerity and associated ‘macro-economic adjustment’. But it should also be stressed that the dreaded MOUs which memorialised the Troika’s demands – seemingly an expression of executive-technocratic power – were also a sign of that power’s ultimate weakness. The Eurogroup and the Troika were able to set conditions on assistance, but they were not able to displace national bodies in order to make these decisions themselves. They still needed to depend on the power and legitimacy of the particular NP in question, even in an atmosphere of extreme crisis; hence the perpetual drama over the last decade in a country like Greece, in which the Eurogroup and the Troika repeatedly sought to compel the Greek Parliament to take decisions contemplated by the MOU. The reason for this ultimate dependence, I would suggest, is that the management of these many crises, at a micro-level, required not simply regulatory power – of which the EU has a vast amount – but more importantly the capacity of legitimate compulsory mobilisation of human and fiscal resources that only a Member State NP possesses. The final three chapters in this volume – each addressing aspects of former ‘second’ and ‘third pillar’ issues (security, defence, foreign policy, and justice and home affairs) – further reinforce this distinction between mere regulatory power, on the one hand, and robust democratic and constitutional legitimacy, on the other. These domains do not merely implicate the powers of legitimate-compulsory mobilisation of fiscal resources; they also implicate those of human resources – in policing, defence, border control and the like. What we are talking about, in short, is the exercise of the coercive power of sovereignty, both internally and externally, and, with regard to the latter, associated diplomatic action. And while the treaties contemplate varying degrees of coordination, cooperation and even outright harmonisation, the essential underpinnings of these powers remain largely national, thus shaping any EU action in a fundamentally intergovernmental direction. The chapter by Anna Herranz-Surrallés focuses on EU security and defence policy over a decade that has seen, as she rightly puts it, ‘the most serious deterioration of the security environment since the end of the Cold War’. The challenges are myriad: increased terrorism risks (and, sadly, also actual attacks); hot conflicts in the EU’s southern and eastern neighbourhoods; tensions with Russia (not least flowing from its actions in Crimea and Ukraine); and then the relative inattention, followed by the outright hostility combined with deep incompetence, on the part of the changing leadership of the US. Against this backdrop, the EU has attempted to reinvigorate defence cooperation via Permanent Structured Cooperation (PESCO) as well as a new multi-billion European Defence Fund (EDF). But as Herranz-Surrallés stresses, despite the formal abolition of the pillar structure in EU law, the CSDP remains, by law, an overwhelmingly intergovernmental domain and hence dominated by national executives at both the national and European levels. Nonetheless, as in the trade space, disputes about security and defence policy have been gaining greater political salience in European politics, and this had the potential, at least, of giving more impetus to increased legislative oversight, both nationally and supranationally. Herranz-Surrallés focuses her attention here on EP oversight as well as on identifying the factors that have led, in her view, to varying degrees of success or failure in the EP’s attempt

Epilogue  323 to insert itself into CSDP decision-making over time. The result is a fascinating story of the ‘ebbs and flows’ of institutional change. The factors she identifies as crucial (‘hybridity’, ‘cohesiveness’ and ‘sovereignty’) map quite nicely onto the key dimensions (‘functional’, ‘political’ and ‘cultural’) that are a central to a more general theory of institutional change.74 ‘Hybridity’, as she terms it, refers ‘the growing institutional complexity and closed-door deliberations [that] make it difficult for [NPs] to hold individual governments to account for EU collective decisions’. This is the foundation for a classic functionalist argument, grounded in the idea that institutions evolve, at least in part, as a function of the problems they seek to solve. In this case, given the increasing geopolitical challenges Europe faces and the need for greater transgovernmental cooperation, this would seem to favour the migration of decision-making in this space to the EU level, and with that migration, the EP might gain functional advantages in providing oversight as compared to NPs. ‘Cohesiveness’, in her analysis, is classically political, relating to the capacity of groups (in this case Members of the European Parliament (MEPs)) to pursue what they perceive to be common interests, either in promoting or preserving institutional advantages (in this case, for the EP) in the face of functional pressures for change. The intuition is that when the EP loses cohesiveness, its ability to gain institutional advantages will be reduced. ‘Sovereignty’, on the other hand, is classically cultural, in the sense that it constitutes a normative claim – a conception of what is ‘right’ – about where power should institutionally reside. This factor has generally favoured national assertions of control – notions of sovereignty are regularly mobilised to resist functional and political pressures to move decision-making (or legislative oversight) to the supranational level. On the basis of the complex interplay of factors over time, Herranz-Surrallés unsurprisingly finds little evidence that the trend is inexorably towards some purported ‘normalisation’ in executive–legislative relations in this domain. Executive dominance, in a largely intergovernmental mode of operation, has continued to be the order of the day. The chapter by Graham Butler tells much the same story in the broader area of the Common Foreign and Security Policy (CFSP), albeit without the same theoretical infrastructure. Butler’s approach focuses more on strictly legal analysis of the EU treaties, as well as on the institutions established to carry out the CFSP. Very much in an ‘as if ’ constitutional vein, he views the general exclusion of the Commission and the EP from law-making in this space as ‘a distortion’, albeit ‘at the specific instruction of the Member States’ in the treaties themselves. Nearly all the legal acts adopted in the CFSP, as he points out, are not ‘legislative acts’. This does not mean that they are not, in substance, of general and prospective application; rather, it means only that they are not adopted pursuant to a formally labelled ‘legislative procedure’ under EU law.75 So, rather than the Commission and the EP playing their usual role, the key adopting actor is the Council (acting by unanimity) and the key implementing agent is the High Representative rather than the Commission more broadly. Butler ably surveys the instances where the EP has sought an augmented role of one kind

74 For an elaboration of this theory of institutional change, specifically with regard to the EU, see generally PL Lindseth, ‘Between the “Real” and the “Right”: Explorations along the Institutional-Constitutional Frontier’ in M Adams, E Hirsch Ballin and A Meuwese (eds), Constitutionalism and the Rule of Law: Bridging Idealism and Realism (Cambridge, Cambridge University Press, 2017). See also PL Lindseth, ‘Transatlantic Functionalism: New Deal Models and European Integration’ (2015) 2 Critical Analysis of Law 83. 75 Article 289(3) TFEU.

324  Peter L Lindseth or another – particularly in furthering its informational rights under Article 218(10) TFEU – as well as the litigation it has pursued to those ends (with mixed success). But the overall tenor of the chapter is one of normative disappointment, combined with a hope that the CFSP will eventually fall within the ambit of the ‘Union method’. In contrast to the CFSP, the Lisbon Treaty did indeed (in principle at least) bring the Area of Freedom, Security and Justice (AFSJ) within this ambit. But as this final chapter by Angela Tacea suggests, this legal alignment was often subject to reservations, caveats and limitations, reflecting the underlying socio-political character of these domains as overwhelmingly of national concern and therefore subject to strong intergovernmental impulses. Moreover, to the extent the Lisbon Treaty was focused on ‘parliamentarisation’ in this domain, it could be said that the beneficiary was as much NPs as the EP, although in neither case did greater transparency and participation rights necessarily lead to a rebalancing away from executive actors or a substantive turn away from the Council’s core security concerns. Tacea sets out to test those intuitions and, with regard to the EP, she draws on a new dataset of measures in this domain up to the end of 2017, which conveniently provides observations on both sides of the shift under the Lisbon Treaty from mere consultation to outright co-decision. Her conclusion – that ‘Old Habits Die Hard’ (as she puts it in one of her section titles) – points to the fact that ‘the transformation of the EP into a co-decider reduced only marginally the space that national governments occupy in AFSJ legislative making’. Moreover, ‘the increased use of trilogues, which are not accessible to the general public, raises transparency concerns and continues to keep the AFSJ decision-making process partially opaque’. This echoes concerns expressed elsewhere that the EP’s ‘legislative’ role is simply window-dressing for a process that is really still just supranational executivetechnocratic governance in ‘disguise’.76 As for NPs, Tacea ties their capacity to play a decisive role in justice and home affairs to their constitutional rights on the national level (eg, the mandating system in the Nordic countries, copied by several eastern entrants, which in practice has given their NPs a policy veto because this domain still largely requires unanimity in the Council). However, other Member States, such as the Netherlands and Germany, have put into place bespoke ‘consent’ measures governing this domain, while others in fact lost domestic veto rights post-Lisbon, making it hard to generalise across all Member States. Nonetheless, all NPs saw their informational rights improve, though the extent varied from access only to public documents in some Member States to EU top-secret documents in others. However, Tacea stresses, that ‘[p]ure institutional arguments do not sum up the role played by [NPs] in the AFSJ’ and ‘[f]ormal rules of procedure offer only a partial view of the scrutiny practice’. She concludes, crucially: ‘All in all, the formal empowerment of [NPs] by the EU treaties generated a greater mobilisation of [NPs], notably concerning controversial issues, but parliamentary mobilisation does not correlate with their formal prerogatives.’ While she is cautious about the actual policy impact of this mobilisation on national executives, she nonetheless notes a distinct ‘solidarity between parliamentary majorities and national governments, as well as a sense of national unity regarding issues reflecting the core of a nation state’. Tacea’s closing chapter in the volume is again a good reminder of the importance of the fundamental distinction between regulatory power, on the one hand, and democratic and

76 Stie

(n 34).

Epilogue  325 constitutional legitimation, on the other. There can be no doubt that in modern administrative governance (of which European governance is simply a supranational variant of the type), NPs have seen power diffuse and fragment into a complex regulatory sphere dominated by executive and technocratic actors. In this environment, NPs find it very difficult to exercise direct control over particular exercises of that power at a granular level. But under the postwar constitutional settlement, such control is, in some sense, not their job; rather, their job is the broader task of legitimation, primarily through the exercise of scrutiny and information rights.77 This is once again a concrete manifestation of the sort of mediated legitimacy on which both modern administrative governance as well as European governance crucially depend.78

VII.  Conclusion: Towards a Critical Juncture in European Integration? This is an admirably coherent collective volume, whose contributions provide an excellent overview of key aspects of executive–legislative relations in the European system since the Lisbon Treaty.79 Even if one might question the ‘as if ’ constitutional framing of EU public law often on display here, the chapters are nonetheless consistently informative, rigorously argued and deeply learned; as such, they merit close reading by scholars in the field. By way of a conclusion, allow me to return to the pandemic emergency and the issues it raises. There can be no doubt that the proposed financing of the recovery fund – in effect, debt mutualisation via the MFF (albeit with only several liability of the Member States, not joint and several liability) – is a major advance in intra-EU financial solidarity. The fact that some portion of the fund will likely be distributed by grants, and the remaining portion distributed by loans but without the harsh conditionality of the eurozone crisis lending regime, is also a hopeful sign for the future. But the issue is whether this step signifies the advent of a deeper transformation – a critical juncture – in European governance.80 Will the supranational level henceforth become a macro-economically significant vehicle for the mobilisation of financial resources to address public needs in Europe? For reasons directly relating to the disconnect between power and legitimacy that I have been stressing throughout this epilogue, my answer is still ‘not yet’, although the possibility remains open for the future. The true sign of such a critical juncture, one that will permit the EU to transcend ‘as if ’ constitutionalism and establish a genuine form of constitutionalism commensurate with the challenges facing Europe, will be the establishment of a supranational taxation capacity. As it stands, any new taxes to augment the EU’s ‘own resources’ would require, under Article 311

77 On this task of legitimation in the context of NP scrutiny of European governance, see Lindseth, Power and Legitimacy (n 2) 204. For more on the control-legitimation distinction generally, see ibid 2, 14, 21–23, 25–26, 48, 201, 238, 265–66, 282. 78 See n 25 above and the sources cited therein. 79 If there is a gap in the coverage, it perhaps relates to one of the main institutional achievements of European integration of the last decade, as well as a crucial response to the eurozone crisis: the establishment of the European Banking Union. 80 See n 16 above and accompanying text.

326  Peter L Lindseth TFEU, unanimity in the Council and, furthermore, they ‘shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements’. In other words, an NP vote will be needed in each of the Member States, which suggests that the true locus of ‘legislative power’ in the EU in this essential respect remains national. This is not ‘constitutional pluralism’ in the way that this term is typically used by EU scholars, to signify the vertical interaction of two robustly legitimated levels of governance, one national and one supranational. This is constitutional pluralism exclusively in a horizontal and polycentric sense only,81 in which the EU, as an agent of the Member States, exercises largely regulatory and coordinating power, but without robust democratic and constitutional legitimacy of its own. For this reason, it is entirely dependent on the national level for legitimate-compulsory mobilisation of fiscal resources in order to give lifeblood to that system. In closing, it should be stressed that I have no objection in principle to the EU eventually becoming a constitutional level of governance in its own right in this robust sense. Indeed, I favour it, precisely because many positives would come from such a transformation, but only if it were supported by the necessary socio-political underpinnings and not simply as an exercise in aspirational institutional engineering. If such a transformation were to occur, Eurobonds – a European ‘safe-asset’ – could complement new forms of EU taxing authority, giving the EU macro-economically salient borrowing capacities while also reinforcing the EU’s fragile banking system and perhaps advancing the status of the euro as a potential reserve currency to rival the US dollar. Armed with taxing and borrowing powers at the EU level, Europe-wide redistributive mechanisms would then become possible, allowing for a genuine recycling of surpluses from wealthier regions to the poorer (perhaps via unemployment insurance or some other solidaristic welfare mechanism), which in turn would help to address regionally asymmetric economic shocks. The eurozone could then become the genuine ‘optimal currency area’ that it is far from being today. It could also then begin to mobilise human resources to project coercive and deterrent power both internally (through policing) and externally (through defence), which is crucial to the EU becoming a full-fledged geopolitical player. Most importantly for our purposes, the EU could then construct real democratic and constitutional bodies (legislative, executive and judicial) that are capable of autonomously legitimating the EU’s exercise of its newly acquired mobilisation powers. But that is not the world we live in, or at least not yet. Instead, what we have is an ‘as if ’ constitutional system that has nonetheless provided a kind of interpretive lingua franca for generations of European elites. This dominant understanding, enamoured by the possibilities of ‘messianic’ legal engineering,82 has led those elites into overlooking the EU’s lack of the necessary socio-political underpinnings for real resource mobilisation, thus contributing to deeply flawed institutional and policy choices. Most prominently, the adoption of the common currency ultimately demanded, for true stabilisation, some degree of supranationalised fiscal capacity, which the EU still lacks. The still tenuous border-free zone in Schengen (which has been set back decisively, first in the migration crisis and then in the coronavirus pandemic) ultimately pre-supposed a degree of centralised political power and 81 Lindseth, Power and Legitimacy (n 2) 265. 82 JHH Weiler, ‘The Political and Legal Culture of European Integration: An Exploratory Essay’ (2011) 9 International Journal of Constitutional Law 678.

Epilogue  327 legitimacy to mobilise human resources – policing, defence and border control – that the EU has been struggling to develop, albeit slowly. What would be needed to bring about a critical juncture in order to transform this state of affairs? I fear that this terrible pandemic, with its widespread loss of life and associated economic dislocation, has unfortunately given us an inkling. When we speak of critical junctures, at least on a scale adequate to transform European governance in the fundamental ways we are discussing, we should not mince words. What we are in fact talking about are the peculiar possibilities that arise from existential and often violent upheavals – the French Revolution, the American Civil War and the catastrophic events of 1914–45, to name just three historical episodes. Indeed, with regard to integration, this last episode was obviously crucial to opening the way in Western Europe for new structures of public governance beyond the state in the immediate postwar years. But even that process, it should be remembered, turned out to be as much about the ‘rescue of the nation-state’ as its transcendence.83 And this more limited process of integration was made possible by the unique historical context of the Cold War and the shield provided ‘by a hegemon’s security umbrella’.84 Europe today must increasingly fend for itself in a dangerous world. And confronting these many dangers could well create the acute conditions to compel Europeans, functionally, to build the needed supranational capacities for resource mobilisation, both human and fiscal – the cornerstone of a genuine European constitutionalism worthy of the name. In that process of institutional change,85 there will no doubt be actors whose interests are defined by preserving institutional advantages tied to the current polycentric realities of Europe. However, one hopes that Europe can nonetheless define a cultural discourse – a conception of ‘right’ built on peaceful but essential change – that could persuade those actors that the time has come for a new democratic and constitutional configuration adequate to the tasks confronting Europe going forward. But it cannot be a Europe built primarily on executive and technocratic (not to mention also juristocratic) forms of governance. Only by transcending the ‘as if ’ constitutionalism that has defined the integration process to date will Europe be able to build a genuinely ‘legislative power’ at the EU level that is fully capable of mobilising the resources needed to confront the challenges before it.

83 AS Milward, The European Rescue of the Nation-State, 2nd edn (London, Routledge, 2000). 84 K Nicolaïdis, ‘European Demoicracy and its Crisis’ (2013) 51 Journal of Common Market Studies 351, 360. 85 On the theory of institutional change informing this discussion, see Lindseth, ‘Between the “Real” and the “Right”’ (n 74).

328

INDEX access to information: comitology, in, 76 mixed trade agreements, in, 185–7 accountability: chain of see chain of accountability Council and European Council accountability to EP, 56 gaps of, in Council and European Council, 53 intergovernmental in European integration, 54–5 mechanisms, level of action, 55 national and collective, 59 acts: delegated see delegated acts implementing and legislative, 67–8 (fig) Advisory Opinion 2/15 (EU-Singapore FTA), 175–6 agenda-setting, 148 European Council’s role of, 20 Annual Growth Survey (AGS), 231 Anti-Counterfeiting Trade Agreement (ACTA), 200–1 documents, Commission shares, 200–1 EP veto of, 167 anticipation function of IIAs, 39–41 decision-making process and, 141–8 Area of Freedom, Security and Justice (AFSJ), 285–302, 324 EP influence on, 286–7 international agreements, EP’s role in, 287 law-making process, EP’s involvement in, 289–90 legislative process and procedure and EP, 291, 292–3 Lisbon Treaty and, 324 NP’s influence on, 286–7 NP’s power of veto and, 324 scrutiny of issues of by NPs, 296–30 (fig) trilogues and decision-making process, 295–6 Area of Freedom, Security and Justice decision-making: EP, co-legislator’s role in, 287–9, 294 justice and home affairs and, 290 ‘as if ’ constitutionalism: approach to, 319 EU and, 325–6 framing, 309–10, 312, 320–1, 323, 325–7 mindset of, 313 ‘assembly government’ (Italy), 123

Assembly of the Western European Union (WEU), 252–3 Austria, first chamber in, 29 balance of powers: CFSP and, 264–8, 273–4 debtor and creditor states, in, 236–9 Germany, in, 239 Greece, in, 239–40 refining of, 79–82 Barroso Commission (2009–14), 46, 200–2, 204–5 bicameral laws and bicameralism (Italy), 134 bills, length of, 117–18 Brady amendment, 149 Brexit agenda, MP’s efforts to influence, 148 Brexit strategy (UK), impact on executivelegislative balance, 139 budgetary: aid conditions, creditor state parliament’s co-decision on, 241 framework, requirements for, 231–2 budgets: MS loss of control of, 240–1 standard budget procedure, 230 (fig) supervision of, 230–4 Canada: CETA and FTA, 216–17 EU, negotiations with (2009), 167 first chamber in, 28 chain of accountability: IPC’s contribution, 63–5 strengthening, 62–5 chain of accountability and delegation, 60–2 EU level, 61–2 national systems, in, 60–1 Chamber of Deputies (Italy), influence of, 127 co-decision: justice and home affairs acts adopted under, 294 OLP, transformed into, 4 co-legislator, EP’s role as reinforced, 4 ‘cohesiveness’, 323 ‘cohesiveness challenge’ (security issues), 247, 249, 250 EP and, 251–2 comitology, 69–71

330  Index access to information in, 70 committees, 70 first comitology Decision (1987), 70 1999 Comitology Decision, 2006 amendment to, 72 second comitology Decision (1999), 71 Commissioner-designates’ obligations to attend hearings, 46 Committee for International Trade (INTA), 200 Common Agricultural Policy (CAP), 70, 109, 110 (fig), 114 (fig) Common Commercial Policy (CCP), 161–2 EP involvement with, 166 political legitimacy in, 163–6 rules of, 161–2 Common Foreign and Security Policy (CFSP), 268, 323–4 balance of powers and, 264–8, 273–4 (case law) Council and, 268–9, 281–2 distribution of powers and, 277 EP and, 251–2, 272, 273 EU foreign policy and, 265–7 executive power and, 268–71 High Representative’s control of, 270–1 institutional cooperation and, 281 integration and, 281 international agreements and, 276–7 IPC on, 246 legal acts and basis of, 267–8 policy domain, as, 266–7 QMV and voting rules, 269–70 Smart Sanctions judgment, 274 treaty provisions for, 269 Common Security and Defence Policy (CSDP), 246 balance of powers, and, 280 developments of and NPs, 251 EP’s focus on, 255 hybridity and, 253, 256–7, 260, 261 ‘normalisation’ and, 248–9 public opinion on, 249 2003–08, during, 251–3 2009–14, during, 253–5 2015–19, re-launch of, 256–60 compliance and transposition strategy, 118–19 Comprehensive Economic Trade Agreement (CETA), 162–3, 317–18 agreement, conclusion and ratification of, 174–5 anti-TTIP/CETA non-governmental organisation, 169 French National Assembly and German Constitutional Court block, 188 FTA and, 162, 167, 171, 174, 176, 216–17 interparliamentary cooperation and, 189–93 legitimacy of and NPs, 173–5 mixed agreement, as, Commission proposal for, 182, 186, 190, 191, 192–3

negotiations, parliamentary scrutiny of, 186–7 NP and, 189 Podemos (Spanish parliamentary group) blocks, 189 ratification of and power of veto, 189 salvaging of, 171–3 signature and ratification of blocked by parliaments, 187–9 Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC), 87–8, 204 meetings, NPs’ participation in, 204–5 2017 survey (evaluation of EU legislation), 93–4 constitutional changes, relevance for NPs, 189 Constitutional Court (Italy) and 2005 electoral reform, 129–32 constitutional referendums, and reform of the Italian Constitution, 125–6 constitutional reforms and transformations in executive-legislative relations, 121–36 Cooper/Letwin Bill (2019), 147 Coordinated Annual Review on Defence (CARD), 256–7 ‘Corporate Sovereignty’ clause, 168 Council Decision 87/373 (comitology Decision), 70 Council Decision 1999/468 (comitology Decision), 71 Council of Ministers and first chamber, 28–9 Council of the European Union (Council): accountability of, gaps in, 53 CFSP, control of, 281–2 delegated acts, objections to, 80–1 EP, accountability to, 56 EP, sharing powers with, 73 EP amendments accepted by, 295 EP power over, 57 EU foreign policy and, 269 EU governance, in, 314 informative prerogatives from EP and, 56–7 legislature, as, 52 national parliaments, scrutiny by, 58 parliamentary representation and, 52–3 structure of, 51 working groups, national delegations opinions and parliamentary opinions on, 300–1 Court of Justice of the European Union (CJEU), 7, 73, 90, 181, 234, 255–6, 312 Covid-19 crisis: ECB response to, 305–6 EU executive-legislative balance, effect on, 15–16 EU mechanisms to control, 305 executive-technocratic governance, effect on, 303–7 MFF during, 306–7

Index  331 creditor states: balance of powers in, 236–9 crisis management in, 238–9 democracy in, 236–9 eurozone crisis and, 321–2 parliaments, co-decision on budgetary aid conditions, 241 crisis governance settings, 242 crisis politics, 13 Czech Republic: Regulation 1307/2013 and transposition in, 114 saliency of EU acts, and, 114 transposition in, 111 de-parliamentarisation, 141–2 UK, consequences for, 141 debates, HC Speaker’s role, 148 debtor states: balance of powers in, 236–9 crisis management in, 238–9 democracy in, 236–9 eurozone crisis and, 321–2 decision-making, 6–7 EP’s role in, 288–90 intergovernmental institutions in, dynamics of, 59–60 powers of NPs, 21 trade, 165–6 treaty bodies, of, 213–15 decision-making process: anticipation function of IIAs and, 41–8 Framework Agreements for (2000, 2005 and 2010), 42 IIAs (1990, 1995 and 2014) and, 37, 38, 42 legislative process’s reliance on, 293 delegated acts: adopted, 67–8 (fig) ‘common understanding’ for, 73 EP control of, 72–3 EP experts’ attendance of groups for, 78–9 EP rules of procedure for, 78 Germany, adoption of in, 300 horizontal rules for, 73 legislators’ roles and, 72–3 MS, adoption of by, 92 objections to, 80–1 TFEU on, 73 Treaty of Lisbon and, 72–3 delegated powers: Commission’s, legislative control of, 79–82 control mechanism for, 74 EP’s control over and scrutiny, 82–3 EP’s over Commission, 74–5 evolution of, 69–75 executive-legislative relations and, 67–84 TFEU on, 73

delegations: absolute limitations of, 223 chain of accountability see chain of accountability and delegation control mechanisms, 220–1, 222 EU constraints, 219–22 external, 222 limits on, 220 Meroni, in, 221 (case law) principals and, 223 provisions for in EU, 219 transposition and, 95–6 democracy: debtor and creditor states, in, 236–9 European integration and, 22 ‘democratic deficit’ of EU, 313 political legitimacy and, 164 democratic government and democratic representation, 30–1 democratic legitimacy: EU, of, 65–6 trade agreements and, 319 democratic representation and democratic government, 30–1 Directive 2011/85/EU, 231–2 Directive 2011/90 and parliamentary transposition, 114 discretion during transposition process, 116–18 distribution of powers, CFSP legal basis, on, 277 documents: access to in TTIP negotiations, 202–3 exchange of in international agreements, 201 restricted, MPs’ access to, 192 Early Warning System (EWS): NPs and, 32 pre-legislative involvement and, 98–9 economic integration, 164–5 electoral legislation (Italy): changes in, 128–32 proportional phase, 128–9 electoral reform (Italy) in 2005, 129–32 EU-Korea FTA, 170, 173 European Central Bank’s (ECB) response to Covis-19 crisis, 305–6 ‘European clause’ (Italy), 133, 134 European Commission (Commission): ACTA documents shared by, 200–1 CETA as mixed agreement, proposal for, by, 191 delegated powers, legislative control of, 79–82 EP, accountability to, 57 EP amendments accepted by, 295 EP’s delegated powers over, 74–5 EP’s scrutiny of power of, 80 EU fiscal governance and, 243–4

332  Index EU trade agreements, power in, 182–3 implementing acts, exceeding powers for, 80 proposals in AFSJ, MS’s role in, 291–2 European Commission President: appointment procedure for, 44–7 RoP requirement for election of, 45 European Council, 51 agenda-setting role of, 20 development of EU and, 52 EP, accountability to, 56 EP’s power over, 57 EU governance, role in, 314 informative prerogatives from EP and, 56–7 NPs, scrutiny by, 58 parliamentary representation and, 52–3 structure of, 51 European Council accountability, 53 gaps in, 53 parliamentary representation and, 52–3 European Defence Agency (EDA), 251, 256–9 European Defence Fund (EDF), 245, 256–9 negotiations for, 257–9 European External Action Service (EEAS), 254, 269–70 European institutions, cooperation of and IIAs, 38 European integration: democracy and globalisation and, 22 identity and, 22, 24 intergovernmental accountability and, 54–5 European-level democracy, creation of, 25–6 European market integration, 23–4 European Ombudsman, investigations for transparency, 191 European Parliament (EP), 4, 251–2, 272 ACTA, veto of, 167 AFSJ, influence on, 286–7 AFSJ legislative process and procedure, 289–90, 291, 292–3 amendments, acceptance of by Commission and Council, 295 balance of powers, 280 budgetary powers, 276 CCP, involvement with, 166 CFSP and, 251–2, 272, 273 cohesiveness and, 251–2 Commission, delegated powers over, 74–5 Commission’s power, scrutiny of, 80 committee secretariats, changes to, 76–7 committees to delegate powers to Commission, 77 competence and power of, 271–3 concluding international agreements, right to be informed about, 43 Council, sharing powers with, 73 Council and European Council informative prerogatives, 56–7

CSDP, focus on, 255 decision-making, role in, 288–90 delegated acts and powers, 72–3, 75–9, 80–1, 82–3 empowerment of and trade policy, 317–18 EU trade, powers to monitor, 162–3 European Council, power over, 57 executive-legislative interaction enhanced after Lisbon Treaty, 197–8 executive-legislative relationship in favour of, 179–84 FTA, implementation and operation of, 210, 213, 215 High Representatives’ involvement with, 274–6 international agreements on CFSP legal basis, procedure for 278–9 (case law) Lisbon Treaty, role of after, 1–2 NPs and see national parliaments and European Parliament OLP and, 47–8 oversight powers over Council and European Council, 64–5 parliamentarisation of, 10 power of, 20–1 reforms under Treaty of Lisbon, 76 resolution for TTIP (2015), 171 scrutiny process, rule for, 77–8 sovereignty, challenge for, 255 strategy of and RoP, 40–1 trade negotiations, rights in, 197–8 treaty bodies’ decision-making, control of, 213–14, 223–5 2004–09, during, 253 2009–14, during, 253–5 European Parliament co-legislative role, 4, 47, 68, 72, 74, 76, 78 AFSJ decision-making and, 287–9, 294 European Parliament-Executive interaction see executive-European Parliament interaction European Parliament in trade agreements, 209–55 consent for, 211–12 implementation of, 213–16 negotiation for, 210, 211–13 operation of, 213–16 point of view of, 212 preparation for, 211–13 right to be informed, 211–12 European Parliamentary Research Service (EPRS), 76, 181, 183 European Research Group (ERG) and Withdrawal Agreement, 143–4 European Scrutiny Committee (ESC) (UK), 139–40, 152 European Stability Mechanism (ESM), 235, 242, 320–1

Index  333 European Statutory Instruments Committee (ESIC), 152–3, 155–6 European treaty revisions, ratification of (Italy), 133–4 European Union (EU): acts, saliency of, 114 affairs, NPs’ influencing of, 100 ‘as if ’ constitutionalism and, 325–6 Canada, negotiations with (2009), 167 Common Security and Defence Policy, 245–62, 322–3 Covid-19 crisis, mechanisms to control, 305 democracy, assessment and scrutiny of, 14, 22 democratic deficit and political legitimacy, 164 documents, restricted, NPs’ access to, 205–6 executive-legislative relations, recalibration of, 19–33 fiscal governance and Commission, 243–4 institutional system, IIAs in, 37–9 ‘institutional triangle’, 4, 173, 265 interparliamentary exchange (IPEX), 101 issues, NPs’ politicisation of and executivelegislative interaction, 199 Italian government, influence on, 133–6 Italy’s participation in, legislation for, 135 legal acts, transposition through parliamentary legislation, 107 legislation, evaluation of by NPs, 93–4 legislature, composition of, 265 legitimate compulsory mobilisation and, 309–10 Military Staff (EUMS), 251, 257 NP’s role recognised in, 4 ‘ordinary’ legislative-making procedures, home and justice affairs included in, 288–9 policy-making, crisification of, 7–8 politicisation of, 8–9 primary law, development of and IIAs, 40 representative democracy, incomplete, as, 19–21 trade policy, streamlining of, 176 US, negotiations with (2013), 167–8 European Union decision-making: intergovernmentalism and, 54 NPs’ rights on, 21, 197 European Union foreign policy, 265–6 CFSP and, 265–7 Council and, 269 EU-Korea FTA, 170, 173 European Union law: deficiencies in corrected by SIs, 151 implementation of in MS, 87–101 national legal order, influence on, 105–6 European Union law transposition, 91–2 national strategies of, 103–20 European Union-Singapore Free Trade Agreement (EUSFTA) 2014, 174, 182, 318

Advisory Opinion 2/15, 175–6 European Union trade: approach to, legitimacy of, 166 EP’s powers to monitor, 162–3 policy, NPs and EP on, 195 European Union trade agreements: EP powers in, 182–3 executive-legislative relations on, 179–94 ‘mixed’ treaties acknowledged as, 190–1 national constitutional elements in, 183–4 national legislature’s scrutiny of, 191 NPs’ powers in, 183–9 Spain, treatment of in, 184 European Union withdrawal (UK), 142 Bill (No 5) (2019), 147 executive (UK) and, 142 legislation of (2017–19), 138–9, 142–3, 146–8 Europeanisation, drawbacks of, 26–7 eurozone crisis, 320–1 debtor states NPs’ role in, 321–2 Excessive Deficit Procedure (EDP), 231, 233 executive-European Parliament interaction, 199–203 data sources for, 199–200 executive (Italy), internal relations, 123–4 executive-legislative interaction: EP rights under, 197–8 legitimacy and, 198 NP rights under, 197–8 executive-legislative relations, 310–14 constitutional reforms and transformations and, 121–36 delegated powers and, 67–84 EU trade agreements, on, 179–94 Italian Republican Constitution (1948), in, 121–36 recalibration of, 19–33 executive-legislative relations (Italy), 121–36 transformation of, 126–8 executive-legislative relationship in favour of EP, 161–78 executive-legislative strategies, statistics for, 117 executive-new parliaments interactions, 204–7 TTIP, on, 207 executive power and CFSP, 268–71 executive (UK): EU withdrawal and, 142 HC, relationship with, 139–40 limitations to parliamentary power and, 145–54 ‘exit day’ (EU withdrawal), 148 ‘fait majoritaire’ (Italy), 124 federalisation, 23, 25–7 Fiche d’impact simplifiée (FIS 1- simplified impact report), 99

334  Index Fiche d’impact stratégique (FIS 2-strategic impact report), 99 financial aid, 234–40 Member States and, 236–7, 242–3 financial crisis governance: benchmarks for, 229–30 representative democracy in, 227–44 financial sanctions imposed on Member States, 90–1 ‘first’ chambers (EU), 28 Council of Ministers and, 28–9 examples of first chambers, 28–9 NPs and, 30 Fiscal Compact (TSCG), 320 ‘Five Presidents’ Report’ (Commission, 2015), 243 Foreign Affairs Committee (AFET), 252, 253, 259 ‘foreign direct investment’ (FDI), 173 ‘form of government’ (Italy), 121 Framework Agreement: EP and Commission, between (2010), 170, 211 treaty bodies, on, 214 Framework Agreements (2000, 2005, and 2010): decision-making process and, 42 EP’s involvement in negotiations, 43 Free Trade Agreements (FTA), 167, 218 agenda, investment arbitration clauses dropped from, 176 CETA and, 162, 167, 171, 174, 176, 216–17 EP’s implementation and operation of, 210, 213, 215 EU-Korea, 170, 173 EU-Singapore, 174, 175–6, 182, 318 treaty bodies, powers delegated to, 218–19 TTIP and, 162, 167 French National Assembly, CETA blocked by, 188 Germany: balance of powers in, 239 Constitutional Court, CETA blocked by, 188 delegated acts, adoption of in, 300 ‘first’ chamber in, 28–9 saliency of EU acts and, 114 transposition in, 112 globalisation and European integration, 22, 26, 166 governance: administrative, features of, 304–5 EU, Council and European Council roles in, 314 European, and legitimate-compulsory mobilisation, 307–9 executive-technocratic, Covid-19 effect on, 303–7 governments and parliamentary majorities, 301 government (UK) dominance in Brexit HC, 156 Greece, balance of powers in, 239–40 Grieve motion (December 2018), 151

High Representative, 270–1 CFSP, control of by, 270–1 EP, involvement with, 274–6 international agreements on CFSP basis, recommendation to Council for, 278 role and functions of, 271, 274–6 ‘horizontal services’ (EP), 76 House Business Committee (UK), establishment of (2009), 151 House of Commons (UK) (HC): Brexit, government’s dominance in, 156 executive, relationship with, 139–40 select committees, 152 Speaker, role in debates, 148 hybridity: challenge, 247, 249, 250, 251, 254, 323 CSDP and, 253, 256–7, 260, 261 identity and European integration, 22, 24 implementation, 88 EU law in Member States, of, 87–101 implementing measures, 67–8 (fig) implementing acts, 67–8 (fig) Commission exceeding its power for, 80 Regulation 182/2011, under, 71–2 indicative votes (Withdrawal of Agreement), 139, 141, 144–6, 149–50, 155 first-round options, 149–50 influence of, 150 second-round options, 150 information: access to see access to information NPs’ right of (pre-2009), 5 transfer of and 2014 IIA, 43 infringement procedures, 90–1 institutional cooperation and CFSP, 281 integration: CFSP and, 281 economic, 164–5 process, NPs’ role in, 314–17 Inter-Institutional Agreement on Better Law-Making (IIABLM) (2016), 74, 170 Inter-Institutional Agreements (IIAs), 10, 37 anticipation function of see anticipation function of IIAs concluding international agreements and, 41–4 cooperation mechanisms of, 36 decision-making process and, 37, 38, 42 definition, 35–6, 40 European institutions, cooperation of and, 38 EU institutional system, in, 37–9 EU primary law, development of and, 40 TFEU, Article 295 and, 37–8 Treaties, compliance with, 38–9, 40 2014 and transfer of information, 43

Index  335 Intergovernmental Conferences (IGCs) revision procedure, 39–40 intergovernmental institutions, dynamics of decision-making of, 59–60 intergovernmental parallel structure (financial aid), 234–5 Intergovernmentalism: EU decision-making and, 54 supranational, 249 international agreements: AFSJ, of, 287 concluding and IIAs, 41–4 concluding procedures for, EP’s right to be informed about 43 exchange of documents on, 201 IIAs, concluding of and, 41–4 2010 Framework Agreement, concluding and, 42–3 international agreements on CFSP legal basis, 276–7 EP procedure for, 278–9 (case law) High Representative’s recommendation to Council, 278 international relations, executive prerogative over, 145–8 international trade agreements, NP’s negotiation and participation in, 198–9, 204–5 International Trade Committee (INTA) (EP): ISDS agreement and, 169–70 meetings, attendance at, 202 (fig) monitoring groups, 170 Interparliamentary Committee Meetings (EP), 63, 88, 101 interparliamentary cooperation: CETA and, 189–93 national parliaments and, 318–19 TTIP and, 189–93 interparliamentary relations see IPC: investment arbitration clauses dropped from FTA agenda, 176 ‘Investment Court System’ (ICS), 171–3 TPC on, 171 investor state dispute settlement mechanism (ISDS), 162 agreement and INTA (EP), 169–70 claims, Member States’ lack of support for, 168–9 mechanism in TTIP agreement, 167–8 TTIP, in, public consultation for, 169 IPC: CFSP/CDSP, on, 246 chain of accountability, contribution to, 63–5 conferences policies and groups on, 63 Italian Republican Constitution (1948), 316–17 background to, 123 constitutional reforms and referendums, 125–6 executive-legislative relations in, 121–36

Italy: domestic law, treaty reforms incorporated into, 133 electoral law, constitutionality in, 130–1 electoral system, 124 EU, participation in, legislation for, 135 executive, pre- and post-1980s, 127–8 government, EU influence on, 133–6 laws (52/2015, 165/2017, 270/2005), 130–2 legislation, EU participation in, 135 see also specific subjects Jacques Santer Commission (1995), 46 judiciary (UK) and executive-legislative balance, 145–6 Juncker Commission ( 2014–19), 202–3, 205–7 transparency initiative launched by, 197 justice and home affairs: acts adopted under co-decision, 294 AFSJ decision-making and, 290 ‘ordinary’ EU legislative-making procedures, included in, 288–9 Korea-EU FTA, 173 legislation, security-related, parliamentary scrutiny of, 247–8 legislative/executive transposition of EU legal acts, 107 legislative power, 308–9 legislators’ roles and delegated acts, 72–3 legislature, scrutiny and oversight functions, 308 legitimacy: administrative, 19 definition, 163–4 EU’s approach to trade, of, 166 executive-legislative interaction and, 198 functional, 19 input, 19–20 political see political legitimacy legitimate compulsory mobilisation: EU and, 309–10 European governance, and, 307–9 Letwin, Oliver, MP: EU Withdrawal (No 5) Bill (2019), and, 147 indicative votes, on, 149 Lisbon Treaty: AFSJ and, 324 EP and NP, developments after, 1–2 negotiations, on, 201 pre-legislative involvement and, 97–8 Protocol No 1, 296 Macroeconomic Imbalance Surveillance Procedure (MIP), 232 majoritarian electoral system (Italy), 128–9

336  Index majority-assuring proportional system (Italy), 130 majority bonus (Italy), 129–30 proportionality test, failure of by, 131 ‘Matterellum’ (Italian electoral law), 129, 316 Member States (MS): budgetary prerogatives in eurozone crisis and, 320 Commission’s proposals in AFSJ, role in, 291–2 delegated acts, adoption of by, 92 financial aid to, 236–7, 237 (fig) financial sanctions imposed on, 90–1 implementation of EU law on, 87–101 ISDS claims, lack of support for, 168–9 loss of control over budgets, 240–1 mixity, on, 174 transposition and, 89–90, 94–5 (fig) Members of Parliament (MPs): Brexit agenda, efforts to influence, 148 restricted documents, access to, 192 mixed agreements: CETA as, Commission proposal for, 182, 186, 190, 191, 192–3 TTIP as, 190 ‘mixed system, with one vote’ (Italian electoral system), 132 mixed trade agreements, 181–2 access to information in, 185–7 mixed-competence element of separated, 176 TTIP as, 186 ‘mixed’ treaties, EU trade agreements acknowledged as, 190–1 mixity, MS on, 174 mobilisation of resources, national legislature’s role in, 304 multi-elected candidates (Italy), 132 multi-level parliamentarisation, 23, 27–32, 33 strategy (Bursens), concerns about, 312 Multiannual Financial Framework (MFF) during Covis-19 crisis, 306–7 national constitutional arrangements, EU trade agreements, in, 183–4 national delegations opinions and parliamentary opinions on Council working groups, 300–1 national executives: authority, growth of technocratic expertise, 304 NP’s scrutiny of, 32 political and legal authority of, 304 post-war constitutional settlement, role in, 315 national legal order, EU law’s influence on, 105–6 national legislatures, scrutiny of EU trade agreements, 191 national-level elections, Europeanisation of, 31 national parliamentary democracy, Europeanisation of, 30–2

national parliaments (NP): AFSJ and, 286–7, 296–301 CETA and, 173–5, 189 corrective capacity of, 55 COSAC meetings, participation in, 204–5 Council, scrutiny of, 58 CSDP operations, involvement in, 251 debtor country, role of in eurozone crisis, 321–2 EP interaction in EU trade policy, 195–208 EU, role of in, 4 EU affairs, influencing of, 100 EU decision-making, powers and rights of, 21, 197 EU information passed to, 316 EU legislation, evaluation of, 93–4 EU restricted documents, access to, 205–6 EU trade agreements, powers in, 183–9 European Council, scrutiny of, 58 EWS and, 32 executive interactions, 204–7 executive-legislative interaction, rights under, 197–8 ‘first’ chamber and, 30 integration process, role in, 314–17 international trade agreements and, 198–9, 204–5 interparliamentary cooperation and, 318–19 Lisbon Treaty, role of after, 1–2 national executive, scrutiny of, 32 negotiations, participation in, 318 politicisation of EU issues and executive-legislative interaction, 199 power of veto and AFSJ, 324 power of veto over trade agreements, 184 pre-2009 role and status of, 5 ratification powers of for trade agreements, 185 refining balance of powers, 280 rights of information of (pre-2009), 5 role and status of (pre-2009), 5 subsidiarity and, 98–9 transparency of information in trade agreements and, 180 transposition of, 104–5 TTIP documents, access to, 206 national parliaments and European Parliament, 192 EU trade policy in, 195–6 ‘sincere cooperation’ between, 192–3 national procedures and wrongful transposition, 96–7 negotiations: elimination of non-tariff barriers through (2009), 167 EP’s involvement in and 2000, 2005 and 2010 Framework Agreements, 43 national and regional parliaments’ participation in, 318

Index  337 non-compliance and transposition through parliamentary legislation, 108 non-legislative procedures (NLPs), 291–2 non-legislative rule-making, 67 non-tariff barriers, elimination of through negotiations (2009), 167 ‘normalisation’ and CSDP, 248–9 ‘one vote’ rule (Italy), 132 openness of transposition process, 115–16 ordinary legislative procedure (OLP), 291, 293 co-decision transformed into, 4 EP and, 47–8 2010 Framework Agreement and, 48 Pandemic Emergency Purchase Programme (PEPP), 305–6 parliamentarisation: multi-level, 23, 27–32, 33 side-effects of, 14 parliamentarism, evolution of (Italy), 127 parliamentary: majorities effect on government’s negotiation position, 301 mobilisation, 299 parliamentary legislation, transposition through see transposition through parliamentary legislation parliamentary opinions, 299 national delegations opinions and, 300–1 parliamentary power: CFSP and, 271–9 executive’s limitations on, 145–54 UK, 140 parliamentary representation, European-level, nationalisation of, 28–30 parliaments CETA, signature and ratification of blocked by, 187–9 national transposition procedures in, 92–6 negotiation position of governments and, 301 security-related legislation, scrutiny of, 247–8 ‘Perassi revolution’ (Italy, 1946), 123, 125, 135 Permanent Structured Cooperation (PESCO) (2017), 245, 254, 256–7 Podemos (Spanish parliamentary group), CETA blocked by, 189 Poland: saliency of EU acts and, 114 transposition in, 111 policy-making (UK), 141 parliamentary participation in, 192 political dialogue, 98 political legitimacy: CCP, in, 163–66 EU democratic deficit and, 164

politicisation, 12–13 populist parties (EU), 24, 250 power of veto: NPs’ and AFSJ, 324 NPs’ over trade agreements, 184 ratification of CETA, and, 189 pre-legislative involvement: advantages of, 97 EWS and, 98 Lisbon Treaty and, 97–8 transposition and, 97–100 prerogative powers (UK), 145 executive, limitation of, 138–9 prerogative (UK), royal and parliamentary sovereignty, 138 President of the Council (Italy), 126–7 private members’ bills, 146 proportionality test, majority bonus fails, 131 qualified majority voting (QMV): CFSP voting rules and, 269–70 super-qualified majority voting, 72–3 recalibration, 10–12 executive-legislative relations in the EU, of, 19–33 recovery fund, financing of, 325 redistributive policies, 24 referendums: abrogative (Italy), 128–9 constitutional, revise Italian Republican Constitution, 125–6 regional parliaments (RP), 175, 180–2 CETA and, 187 participation in negotiations, 318 trade agreements and, 185, 194 Regulation 182/2011, implementing acts under, 71–2 Regulation 1307/2013, transposition in Czech Republic and Slovakia, 114 Regulations 472/2013 and 473/2013, 232 Regulations 1174/2011 and 1176/2011, 232 Regulations 1175/2011 and 1177/2011, 231 Regulatory Procedure with Scrutiny (RPS) (EP, 2006), 72, 77 renationalisation, 23–5 reparliamentarisation (UK), 137–57, 317, representative democracy, 20 EU, discussion of, 229 financial crisis governance, in, 227–44 ‘right of security’, 71–2 Rules of Procedure (RoP): delegated acts, for, 78 election of President of European Commission, requirements for, 45 global strategy of EP and, 40–1

338  Index Samland-Williamson agreement (1996), 70–1 scrutiny: CETA and TTIP negotiations, parliamentary scrutiny of, 186–7 EU democracy and, 22 mixed trade agreements, in, 185–7 period, EPs’ extension of, 81–2 process, EP rule for, 77–8 secondary legislation, transposition of, 93 security, 53 issues, politicisation of, 249 politics, 246 ‘sincere cooperation’ between NPs and EPs, 192–3 Single European Act 1986, 69–70 single-reading procedure (legislation), 293–4 SIFT project (Public Law Project), 153 ‘six pack’ legislative measures, 57, 231–2, 233 implementation of measures under, 233 sanctions, enforcement of under, 233–4 Slovakia: Regulation 1307/2013 and transposition in, 114 saliency of EU acts and, 114 transposition in, 111 Smart Sanctions judgment, 274 sovereignty, 323 challenge (security issues), 250, 255 integration and, 22–3 parliamentary (UK) and royal prerogative, 138 Spain, EU trade agreements’ treatment of in, 184 Spelman amendment, 149 Stability and Growth Pact, ‘escape clause’ in, 305 statutes and bills, comparative length of, 117–18 statutory instruments (SIs): Brexit, 153 EU law, deficiencies in corrected by, 151 scrutiny procedures for, 153–4 statutory law and adoption of transposition measures, 106 Stuttgart Solemn Declaration (1983), 45 Sub-committee on Security and Defence (SEDE), 253 subsidiarity and national parliaments, 98–9 supranational: governance, 319–20 intergovernmentalism’, 249 ‘pre-commitment’ institutions, 312 SWIFT Interim Agreement, 200 tariffs, negotiations for elimination of, (2009), 167 Task Force on Subsidiarity, Proportionality and ‘Doing Less More Efficiently’ (2018), 1, 97, 99 trade, legitimacy of EU’s approach to, 166

trade agreements: access to information and scrutiny of mixed trade agreements, 185–7 CETA as mixed trade agreement, 182, 186 democratic legitimacy and, 319 EP’s rights under, 197–8 EP’s role in, 197–8 mixed see mixed trade agreements NPs’ power of veto over, 184 NPs’ ratification powers over, 185 transparency of information in, 180 TTIP as mixed trade agreement, 186 trade liberalisation (EU), 22 trade policy and empowerment of EP, 317–18 Trade Policy Committee (TPC) (EC), ICS, on, 171 Transatlantic Trade and Investment Partnership (TTIP), 162–3 agreement, negotiations for (2013), 167–8 anti-TTIP/CETA non-governmental organisation, 169 EP resolutions for (2015), 171 EP’s access to documents in, 202–3 executive-NP interactions on, 207 FTA and, 162, 167 inter-parliamentary cooperation and, 189–93 mixed agreement, as, 190, 192–3 mixed trade agreement, is, 186 NP’s access to documents for, 206 provisional version of, examination of, 186 public criticism of, 167 resolutions, parliamentary scrutiny of, 186–7 transparency: European Ombudsman investigations into, 191 initiative, 197 transposition process, of, 115–16 transposition, 88 Czech Republic, in, 111 delays in, 96–7 delegation and, 95–6 EU law and see European Union law transposition executive transposition procedures, 115 Germany, in, 112 Member States and, 89–90, 94–5 models of, 94–5 (fig) national, 104–5 national parliaments and, 104–5 national transposition procedures in parliaments, 92–6 parliamentary and Directive 2011/19, 114 Poland, in, 111 political aspects of, 105 post-Lisbon era, in, 89–92 pre-legislative involvement and, 97–100 process, transparency of increased, 107 secondary legislation as, 93

Index  339 Slovakia, in, 111 strategies and executive and legislative power, 104–8 UK, in, 111 wrongful, effects of, 96–7 transposition case studies, 108–19 country selection, 109–12 data analysis, 112–13 legal acts selected for analysis, 110 (fig) methodology, 112–15 national constitutional and statutory frameworks of countries, 109–12 research for, 108–9 results of, 113–19 types of transposition in, 115 transposition measures: adoption of, 106 formal consultations for, 115 transposition process: complexity of explanatory notes illustrate the openness of, 115–16 discretion during, 116–18 national discretion in, 108 openness and transparency of, 115–16 transposition strategy: compliance and, 118–19 delays, and, 118–19 transposition through parliamentary legislation: EU legal acts, of, 107 national ‘discretion’ in transposition process increased by, 108 non-compliance and, 108 transparency of transposition process increased, 107 Treaties, the, IIAs used in compliance with, 38–9, 40 treaty bodies: decision-making of, 213–15, 216–18 delegation, constraints on, 219–23 EP delegates powers to, 218–19 EP’s control over decision-making, 223–5 European Council’s lack of involvement in decision-making, 213–14 Framework Agreement on, 214 Treaty of Lisbon: delegated acts and, 72–3 EP’s reforms under, 76 Treaty on European Union (TEU): Article 10, 4 Article 12, 4

Article 50, 146 (case law) MPs mentioned in, 4 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG), 230, 320 Treaty on the Functioning of the European Union (TFEU): Article 290, 73 Article 295 and IIAs, 37–8 delegated powers, on, 73 treaty reforms incorporated in Italian domestic law, 133 trilemma: democracy, sovereignty and integration, 22–3 European integration of, EU caught in, 21 Rodrik’s trilemma model, 311 trilogues, 293, 294, 303, 324 AFSJ decision-making and, 295–6 Troika (financial aid governance), 235, 242, 320 two-pack legislative measures, 232 2010 Framework Agreement: concluding international agreements and, 42–3 introduction of, 46–7 OLP and, 48 2016 Interinstitutional Agreement on Better Law-Making (IIABLM), 42, 47–8, 74, 170 United Kingdom: Brexit agenda, 139 de-parliamentarisation, consequences for, 141 EU withdrawal implications, 142 parliament, prorogation of, 144 saliency of EU acts and, 114 transposition in, 111 United States’ negotiations with EU (2013), 167–8 Walloon Parliament (Belgium), CETA signature and ratification of blocked by, 187 Withdrawal Agreement (UK): ERG and, 143–4 parliamentary debate on, 143–4 votes on, 143–4 Working Group on Information Exchange and Data Protection (DAPIX), 300 World Trade Organization (WTO), 161, 165

340