In the run-up to the European elections, several parties’ manifestoes (see EUROPE 12259/1) talked of giving the European Parliament a right of legislative initiative. In May, Manfred Weber, the Christian Democrat candidate for the Presidency of the Commission, took position in favour of the idea (see EUROPE 12246/2); then, the outgoing President of the EP, Antonio Tajani, also got behind it (see 12251/3).
Currently, the Parliament already enjoys a ‘right of initiative’, which consists of being able to ‘ask the Commission’ to submit a proposal. To look at one recent example, a group of around ten MEPs tabled a ‘proposed EU act on improving plasma collection in the EU’ (18 December 2018). This option has existed since the Maastricht treaty (art. 192(2) TEC) and was taken up in the Lisbon treaty, with an addendum requiring the Commission to give reasons for its decision if it does not comply with such a request (art. 225 TFEU). A refusal for which no reasons are given may lead to a vote of no-confidence.
Formally, the Commission enjoys a monopoly on the right of initiative (with the exception of a few specific areas), which consists of submitting a full and substantiated legislative proposal to the two branches of the legislative apparatus, the Parliament and the Council of the EU. This text is used as a basis for negotiation and then, usually, for the agreement between them. This is the familiar triangular system of the Community method, which has proven its worth.
To give the Parliament an actual right of initiative, it would be necessary to amend the Treaty of Lisbon, which is not likely to be a popular or successful option at this moment in time. Supposing that an Intergovernmental Conference (IGC) were convened to this end, neither the EP nor the Commission would have the most power; the member states would. In this context, the Council would have every justification in calling for a similar right for itself, for reasons of symmetry. These two rights were already set out in the draft fundamental law of 3 October 2013 authored by the Spinelli Group (see EUROPE 10937/21): it is true that it would belong in a fully federal system, but unlikely.
Whether the outcome of our IGC would be to give both institutions a right of initiative or just the Parliament, the Commission would not be stripped of its own, but it would lose the monopoly on it, thus altering the institutional balance. The notion of ‘trilogue’ would become meaningless, certainly if the base text was not its own. If such a text had already been voted on by the MEPs, they would subsequently struggle to approve a future version that had been modified, if not taken apart and completely rebuilt, by the Council working solo. The Commission would have the management only of the phase following the publication of the act (application of the law, transposition into the national legislations, any delegated acts required, budgetary execution). It is unlikely to want to rush to bring about such a situation!
Certainly, the Commission’s monopoly has been eaten away since the 1980s, when the Presidencies of the Council got into the habit of each establishing the legislative timetable for the six-month period with the Commission (or imposing one on it). The principle of subsidiarity limits choices. The Commission’s initiatives often stem from invitations from the Council of the EU, most recently the European Council, or from economic operators. In some cases, they can result from the Parliament’s votes. The European Citizens’ Initiative is a more recent source of external impetus. The share of proposals arising from the spontaneous, autonomous will of the College is around 6%. It tends to put its own limits on itself. Yet all legislative procedures must technically start with a Commission text.
To prepare a legislative proposal, the Commission has at its disposal a vast administration with highly qualified staff, a legal team with extensive knowledge of the national laws. It is capable of carrying out wide-reaching preparatory consultations, requiring complex organisation and analysis. Thus equipped, as the legislation will apply to the entire EU, it can and must take account of the interests of countries of all sizes: minority member states are protected. Internally, it arbitrates between several options: new legislation ‘ex nihilo’ or amendments to the existing European acquis; draw inspiration from an exemplary national law or seek a common denominator between 27 national laws, etc… It objectifies what is stake for all, guided by the European common interest. This is the stuff of a quality product.
The EP does not have the same kind of administration and this would be to the detriment of its initiatives. Those wishing to increase its powers would do better to argue in favour of rolling out the ordinary legislative procedure. There is still an impressive number of articles of the TFEU in which the Parliament is merely consulted.
In the institutional triangle, right up to the Single European Act, the Parliament has been the weakest link. The Commission has slid into this situation, following co-decision, but also following the superimposition of the European Council, usurping competences with no basis in the treaty.
One might dream of a European Federation taking its inspiration from the state model (Montesquieu) or, quite the reverse, a return to pure and simple inter-governmentalism. These are both minority options. The consensus and the dynamic point to a balanced triangle.
Renaud Denuit