Referendum Briefing 3: Does the EU have a ‘democratic deficit’?

Laurent Pech, Professor of Law, Middlesex University

Steve Peers, Professor of Law, University of Essex

The EU is regularly accused from suffering a ‘democratic deficit’. In particular, it is often asserted that all EU decisions are made by the EU Commission – who are ‘unelected bureaucrats’.  

As we demonstrate in this post, this criticism is clearly invalid. It fundamentally misunderstands (a) the powers that the Commission has – and more generally how decisions are made in the European Union; and (b) the way in which the European Commission gets into office. We will examine each of those issues in turn.

Who does what? Does the Commission adopt all EU laws?

The crucial thing about the EU system is that the Commission does not have anywhere near as much power as many people think it has. The standard EU’s decision-making process is: the Commission alone makes legislative proposals. Those proposals are then considered by the Council (the intergovernmental body representing elected national governments), jointly with the elected Members of the European Parliament (representing EU citizens), whose powers have been gradually and significantly increased over the last three decades. Some people say that the Council and European Parliament simply rubber-stamp Commission proposals, but that is not true: they sometimes reject them and almost always amend them.

This graph illustrates the EU decision-making process:

 

In addition, national parliaments have seen their involvement with the EU’s decision-making process formally recognised and all draft legislative acts, for instance, must be forwarded to them. If enough national parliaments object to an EU proposal, it must be reconsidered (a so-called ‘yellow card’). The UK’s renegotiation deal says that if enough national parliaments object to a proposed law, it will be rejected (so-called ‘red card’). Any major changes to the EU (new Member States, new Treaties) have to be approved by national parliaments.

Overall guidance on what policies the EU should take comes not only from the Commission but also from the European Council – the EU body made up of Member States’ Prime Ministers and Presidents, such as Cameron, Hollande and Merkel. When they call for the proposal of an EU law on an issue the Commission usually reacts quickly. The Council and European Parliament can also ask the Commission to propose laws.

Although a lot of EU decisions are made by a ‘qualified majority’ in the Council (meaning they need 55% of the Member States with 65% of the population to support them), there is a tradition of seeking wide consensus. So – as the graph at the top of this blog post indicates – the UK has in recent years voted in favour of 95% of EU laws.

Once an EU law is adopted the Treaties say that implementation powers are left in principle to Member States. So it’s up to national authorities to apply most laws which Member States have agreed in the EU. As an exception the Commission has powers in a few cases to adopt some detailed further rules to implement the technical details of an EU law which was already agreed, so that the EU law applies in the same way in all Member States. But the Commission’s use of such powers is controlled by Member States and the European Parliament, who can block such draft technical measures. This is similar to the process in most national systems – including the UK, where the government drafts ‘Statutory Instruments’ which the House of Commons or House of Lords can block.

This system is a complex one because it has to reflect several and sometimes competing objectives such as the necessity to ensure the fair treatment of all Member States from the largest to the smallest. Member States insist on retaining their control over the EU’s decision-making process to democracy at the national level, and democratic legitimacy at EU level is reflected by the strengthening over time of the legislative, budgetary and supervisory roles of the European Parliament whose position as a ‘co-legislator’, jointly with the Council, is now firmly established. It is because the member states believe that their national interests were and continue to be better served by an independent Commission with atypical powers (e.g. the Commission’s monopoly on legislative initiative or its enforcement powers) that the Commission’s role, functions and powers have been left essentially unchanged since the Treaty establishing the European Economic Community of 1957.

To argue that such the EU’s system of governance is not democratic illustrates a failure to grasp that, in fact, the EU’s institutional framework has been specifically designed not to function on the basis of a mere majority rule but on the contrary, as an highly consensual system where nothing of importance can be agreed without the joint consent of the Commission, Parliament and Member States’ governments in the Council.

With respect to the Commission, critics quite often point out that it alone has the right of legislative initiative, meaning that legislative acts may be adopted solely on the basis of a Commission proposal. However, they usually fail to point out that, as noted above, EU leaders often ask for the Commission to propose a new EU law; both the Council and the Parliament have the formal power to ask the Commission for a proposal; and the Council and the Parliament must adopt proposals from the Commission for them to become law.

In practice, the annual work programmes adopted by the Commission are in any event devised in the light of a process of intensive and continuous dialogue with the European Parliament and the Council. One may also note in passing that at the national level, bills tend to be written by civil servants working for ministerial departments. In the UK, in practice Private Members’ Bills cannot be adopted unless the government wants them to be.

Finally, a word about EU judges. They are often described as ‘unelected’ – but of course judges in the UK and most other countries are unelected as well. In fact, the UK has a veto over the appointment of EU judges. So none of them can take up their jobs in the first place or keep their jobs (appointments are reviewed every six years) without the UK government’s approval.

The European Commission

It’s simply inaccurate to describe the Commission as ‘unelected’. Rather, like many national legislative bodies, it is elected indirectly – meaning that it is appointed by people who are directly elected. A candidate for President of the Commission is selected by the national Heads of State and Government (each democratically accountable to their own Member State), taking into account the results of the elections to the European Parliament. In other words, the choice of the Commission President is based on which party got the most seats in the European Parliament elections – just as the choice of the UK Prime Minister is based on who gets the most seats in a UK general election. (The Annex to this blog post shows how the Commission is appointed in graphic form - compared to the UK).

Moreover, starting from the current Commission (which took office in 2014) the candidates for Commission President had actually been nominated by European political parties in advance. So voters could make a judgment on which potential Commission President they preferred when they cast their vote in European Parliament elections – just as they can do the same for potential Prime Ministers when voting in a UK general election.

This allows a connection between the voting choices made by citizens all across the EU in the European Parliament elections with the political colour of the selected candidate to the presidency of the Commission. The nomination of the President must be further approved by a majority of those elected Members of the European Parliament. For those who ask ‘how can I get rid of the Commission President?’, the answer is simple. He got that job in the first place because of the results of the European Parliament elections. If he runs again to be Commission President and you don’t want him to keep the job, don’t vote for his party (or for another party that would back him).

Then the remaining members of the Commission are each proposed by Member States’ elected governments, and as a body, they must be subject to a vote of approval by the European Parliament. Prospective commissioners are also subject to individual questioning by the appropriate European Parliament committee prior to the European Parliament’s approval.

How can voters vote out the European Commission as a whole? They don’t get to vote on the entire Commission – but that’s because the appointment process defers to Member States. People criticise the EU for not being a democracy, but in many ways it is an international organisation. We don’t usually expect international organisations to be democratic as such; rather their accountability comes from national governments’ participation in them. So we don’t get to ‘vote for NATO’ or ‘vote for the UN Security Council’; we vote for governments that represent us in those international institutions. Similarly, a vote in a British national election determines the political background of the British Commissioner: the current Commissioner is a Conservative, and the previous one was Labour.

Some argue that Commissioners and/or its President must be directly elected. The idea of direct election for the president of the European Commission however reveals not only a misunderstanding of the Commission’s role (it is not supposed to act as the government of the EU) but also a lack of understanding of how national Heads of State or Government are appointed. For instance, there is no actual direct election for selecting the Prime Minister in parliamentary regimes like the UK.

The Prime Minister would certainly be locally elected as an MP – like David Cameron is in Witney. Yet, he or she will become Prime Minister, strictly speaking, on the sole ground of being the victorious leader of a political party, which selected that leader beforehand, without asking citizens’ opinion. We also had examples in the UK of seeing an MP being coroneted PM without a general election being organised (Brown, Major and Callaghan, just in recent years).  In other words, it is wrong to assume that electors directly decide on the identity of the Prime Minister; rather they select the leader of the country from a pool of names put forward by political parties. This is essentially equivalent to the appointment of the EU Commission.

Similarly, it is also wrong to assume that national cabinet ministers (equivalent to the rest of the Commission) are always elected officials. This is for instance the situation in France where anyone can be appointed minister without having ever been elected to the national Parliament or to a local assembly. The UK cabinet has ministers from the unelected House of Lords. Even worse, in a multi-party system, as opposed to a two-party system, the citizens may find themselves with a government that does not represent the most popular political party, but which is the fruit of arrangements made between political parties after the elections are held – like the UK coalition government between 2010 and 2015. With these examples in mind, the selection and appointment of Commissioners by the European Council and the European Parliament cannot be said to be less ‘democratic’ nor less ‘transparent’ than the equivalents in the UK or other Member States.

Furthermore, it’s possible for the Commission to be dismissed by the European Parliament – just like the UK’s House of Commons can pass a vote of non-confidence in a government.  However, it’s true that this power has never successfully been used. Does the EU suffer from a comparison with the Member States in this respect? Not quite, as the power to dismiss the government has simply been lost at national level for a range of reasons: fixed election dates, the so-called rationalisation of parliamentary rules and a more disciplined partisan system. In the UK, for instance, we only have one example of a government brought down by a motion of no confidence since World War II.

Conclusion

At the end of the day, the European Union’s institutional architecture and decision-making process merely reflect the twofold legitimacy of the EU as a union of States and of citizens on which competences have been conferred to meet common objectives. In other words, the legitimacy of the EU’s institutional architecture flows from two sources: the Member States, which are represented at the EU level in the European Council by their Heads of State or Government and in the Council by their governments which are democratically accountable to their national Parliaments, and the European Parliament, which is directly elected and represents European citizens.

In this context, the highly consensual and arguably cumbersome process governing the selection and appointment of the Commission may be perhaps better understood and justified. If anything, one may even argue that it would be unwise, and one may even say undemocratic, to push for a complete ‘democratisation’ of the Union’s institutional architecture and organise the transformation of the Commission into something akin to a national government. Indeed, and contrary to popular wisdom, the strict implementation of a purely majoritarian system and the direct transplantation of the mechanisms associated with the national model of parliamentary democracy would, in all likelihood, undermine the EU’s legitimacy due to the ‘thin’ character of the European Union’s sense of collective identity.

The resulting original system of government could be a hard sell to the man on the street, as it may differ from his instinctive (and, in most cases, idealised) understanding of what a democracy is or how one’s democratic system actually works. It may, nonetheless, be defended in the name of democracy, one where the value of consensus trumps the majoritarian features classically associated with the Westminster model of parliamentary or representative democracy. This is not to say of course that there is no room for improvement when it comes to the democratic life of the EU.  It remains however ludicrous to describe the EU as an undemocratic ‘superstate’. For all its imperfections, the EU may actually offer the chance of political leadership at a level where the social impact of globalisation could be democratically and effectively managed. One may only that hope that people remember, to paraphrase Voltaire, that the best can quite often be the enemy of the good.

Graphics credits: The Conversation (Council voting); tasc.ie (EU decision-making); uktostay.eu (Commission appointment)

Annex: Appointing and dismissing the European Commission 

The draft UK/EU renegotiation deal: is it 'legally binding and irreversible'?

Steve Peers

The draft deal on renegotiation of the UK’s EU membership has already caused great controversy: both from those (mostly in the UK) who think it does not go far enough, and those (mostly in the rest of the EU) who think it goes too far in revising EU law to satisfy the objections of one Member State. These issues are mainly substantive, and I have addressed some of them in an earlier post about the immigration aspects of the draft deal. I’ll write later about the remaining substantive issues, although I will touch on some in this blog post. There’s already an analysis of the proposed ‘red card’ for national parliaments by Katarzyna Granat here.

Yet in addition to concerns about the substance of the deal, there are doubts about its legal nature. In particular, is the deal ‘legally binding and irreversible’, as David Cameron had pledged? The answer is complicated, because there are several different parts of the deal, taking different legal forms. For each part, the legal status depends on several different factors: when the text would be adopted; who would have to approve it; whether the EU courts have power to overturn it, and whether they are likely to do so; and whether the text could be repealed or amended in future. (I am assuming throughout that by ‘irreversible’, David Cameron meant irreversible without the UK’s consent).

This blog post answers that question, looking first at the legal form of the agreement. Next, I suggest ways in which the draft deal could be made more legally secure. Then I examine, based on prior experience, whether the EU can be ‘trusted’ to implement the draft deal. Finally, I provide, in one table, my assessment indication of the extent to which each of the parts of the draft deal are ‘legally binding and irreversible’, based on the factors mentioned above.

Legal form of the main deal

The draft deal takes the form of six draft legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘draft Decision’); a Statement of the Heads of State and Government (which consists of a draft Council Decision); a Declaration by the European Council: and three declarations by the Commission. Implicitly, it also includes three planned EU legislative proposals, all dealing with the free movement of EU citizens (the emergency brake on benefits, EU citizens’ non-EU family members and export of child benefit), which are referred to in these texts. The UK government is also likely to table some domestic legislation linked to the renegotiation deal: I consider that prospect briefly (and propose some further national laws which the UK might consider) below.

The basic legal form of the deal, and even some of the proposed text, corresponds with suggestions I made back in May 2014, as supplemented in May 2015 and June 2015. However, the text falls short in some respects of what I suggested there; that’s a substantive issues, so more on that in a later blog post. I’ve integrated the main relevant points from those previous posts into this one, for the reader’s convenience.

One important point before we continue: while the title of the deal refers to the UK only, none of the actual text of the deal applies solely to the UK. So it would apply to all Member States. That means it’s possible, for instance, that a proposal which the UK supports could be stymied by other Member States’ national parliaments (via the Council), using the proposed new ‘red card’. It is possible, however, that the UK would be the only Member State aiming to implement some parts of the proposed deal, in particular the ‘emergency brake’ on benefits; and of course some of the existing opt-outs referred to in the draft deal only apply to the UK and one or two other Member States.

Let’s begin with the easiest parts of the draft deal: the planned EU legislation. We know the legal effect of EU legislation, once it’s adopted: it’s binding and directly applicable (in the case of the two planned Regulations), or binding as to the result to be achieved, leaving national authorities the choice of form and methods (in the case of the planned Directive). (See the definitions of EU legislation set out in Article 288 TFEU). The more difficult question here is the process. Can it be guaranteed that the proposals will: (a) be made; (b) be adopted; (c) not be struck down by the EU Court of Justice (CJEU); and (d) not revoked?

It’s up to the Commission to make proposals. The draft Decision of Member States can’t bind the Commission (more on that below), but the draft deal includes two declarations by the Commission, announcing its intention to make these proposals. For those proposals to be adopted, they must be approved by the Council (by a qualified majority) and the European Parliament (by a majority of the vote, under most variants of the EU legislative process). Again, the draft Decision of Member States can’t bind the Council or the European Parliament. But the Council is made up of Member States’ ministers, and in the draft deal the Member States commit themselves to supporting two of these three proposals (on child benefit and the emergency brake). It’s odd that there’s no parallel commitment as regards the third proposal (on EU citizens’ non-EU family members), but this may be a drafting oversight. The timing of these measures depends on how soon they would be adopted, although the Commission declares that it will table them after a ‘Remain’ vote.

The deal foresees that the law creating an ‘emergency brake’ for EU workers’ in-work benefits would subsequently have to be implemented following a UK request to use it. This would need a proposal from the Commission and a vote by the Council (by qualified majority). There would be no role for the EP at that stage. A draft Commission declaration states that the Commission is willing to make this implementing proposal; there is no commitment from the Member States to support it. Again, this might possibly be a drafting oversight. The timing would follow the adoption of the legislation on this topic: it would likely take at least one month for the UK’s request to be approved. 

So the real question is whether to trust the Commission and Council (ie the Member States); although it’s also notable that the Member States haven’t committed themselves to support all aspects of the draft deal in this area, but only some of it. I’ll return to that question of trust below, as regards the deal in general. But it doesn’t even arise as regards the European Parliament (EP) or the CJEU, as they are not bound by the deal. It remains to be seen whether the EP will object to some or all of the legislative plans (this might become clearer closer to the referendum date). The position of the CJEU would only be clear if a legal challenge reached it. That would most likely follow from a challenge by an individual to the implementation of the new legislation, after it’s adopted, via the national courts. So it would be some years away. I made an initial assessment of the validity of the planned changes in the separate post on free movement issues; I have summarised my views in the table below.

Leaving aside the question of Court challenges, could the legislation be revoked or amended, after it was adopted? In principle, that is possible, using the same legislative procedure: proposal from the Commission, qualified majority in the Council, and support from the EP. So the UK could not veto this taking place. But implicitly the Commission’s commitment to make these proposals, and Member States’ commitment to support at least two of them, suggest this is not going to happen. Again, this comes back to a question of trust. 

The draft deal also refers to Commission plans to issue ‘guidance’ on aspects of EU free movement law. This concerns part of the rules on EU citizens’ non-EU family members (part of those rules would be covered by a new law). There would also be ‘guidance’ on the issue of criminality of EU citizens. For the latter point, the Commission’s declaration states that it will ‘examine the threshold’ relating to expulsion of criminal EU citizens when the EU citizens’ Directive is revised in future. This is too imprecise to regard as a commitment.

Next, the draft Council decision on Eurozone governance. This measure can be adopted by the Council itself, as part of its powers to govern its own activity. It does not need to be proposed by the Commission, or agreed by the European Parliament. It is similar to an existing Council decision, which provides for delays in the vote if a sufficient number of Member States have qualms about them. Protocol 9 to the Treaties says that any changes to such rules must be discussed by consensus; arguably that means that the Decision could not be amended or repealed without the UK’s consent. Technically the draft Decision should take the form of an amendment to the existing Decision, to make sure that Protocol 9 applies to it too. Since the draft Decision would not amend the rules of the Treaty on the adoption of legislation, but only provide for a delayed vote, it seems very unlikely that the CJEU would annul it.

In fact, it’s not even clear who would challenge it: the Commission and Member States would support it as part of the deal; there seems little reason why an individual would challenge it in the national courts; and it would be hard for an individual to find a procedural route to challenge it in the courts anyway (the CJEU has ruled that procedural rules of the Council don’t give rise to individual rights). That only leaves the European Parliament, and this Decision doesn’t appear to be at the top of their concerns about the draft deal. Finally, as for timing, the intention in the draft deal is to adopt the Decision once a ‘Remain’ vote was notified, with no further action necessary. The draft deal calls for a possible Treaty amendment in future on this point. 

Finally, the main part of the deal: the draft Decision of Heads of State and Government. It takes the form of five sections, dealing first of all with the UK’s four main negotiating objectives: the Eurozone (section A); competitiveness (section B); sovereignty (section C); and EU free movement (section D). Section E includes rules on dispute settlement and entry into force.

First of all, it should be noted that the draft Decision is not EU law as such; it’s international law. It’s often described as a proposed act of the European Council, which is the EU institution consisting of Heads of State and Government. But that’s simply not correct: it’s a proposed act of the Heads of State and Government as such, not the European Council (or any other EU institution). That distinction might sound like hair-splitting to non-lawyers, but it has practical legal consequences.

While the draft Decision is not described as a treaty, it could be regarded as a ‘treaty in simplified form’ (see the broad definition of a treaty in Article 2(1)(a) of the Vienna Convention on the Law of Treaties). Certainly the intention is to register it as an international treaty (see Articles 77-80 of that Convention). This form of legal act is not new to the EU: it was used in 1992, to encourage Danes to ratify the Maastricht Treaty, and in 2008, to encourage Irish people to ratify the Lisbon Treaty. That’s why I predicted that it would be used again in this case.

What are the distinctions between this draft Decision and EU law? First of all, while the draft Decision would be binding if adopted (as confirmed by the draft conclusions of the European Council), since binding effect inherently follows from its status as a treaty, it would be binding under international law, not EU law. Secondly, the draft Decision would not as such change EU law, although other elements of the overall deal would: the planned legislation on free movement issues, and the Council Decision on Eurozone issues. The draft Decision also contains rules on the application of EU law in practice (namely, Member States’ voting in Council after a ‘red card’ is issued by national parliaments) and a commitment to amend the Treaties in future, as regards the Eurozone governance and ‘ever closer union’ issues. (The latter commitment is in square brackets, indicating that it is still a topic of discussion).  

Indeed, the draft Decision could not change EU law as such, without following the formal procedures to that effect. I have discussed the issue of amending EU secondary law above, but the same is true of EU primary law (the Treaties). The prior Decisions did not change the EU Treaties, and they could not, because the CJEU had ruled that the Treaties could only be amended using the procedure set out within them, in the Defrenne II judgment. Like the prior decisions, the draft Decision specifies that it does not amend EU as such, but interprets it.

However, the draft Decision can include legal obligations for Member States as a matter of international law, as long as this does not conflict with EU law. In the event of any conflict, the primacy of EU law means that the latter takes precedence over the Decision. But is there any conflict? This is a substantive question, and in any event where the draft deal calls for EU secondary law measures to be adopted (the free movement legislation, the Eurozone Decision) the real question is whether those measures would themselves breach the Treaties if adopted. I will examine whether there is any conflict with the Treaties as regards competitiveness and sovereignty in a subsequent post, but I will comment on one here: the commitment of Member States to block Council decision-making if a ‘red card’ is pulled by national parliaments, on the condition that national parliaments’ concerns are not addressed.

Andrew Duff has argued that this breaches EU law, because it infringes the powers of the European Parliament in decision-making. In my view, this is clearly incorrect. A decision by the Council to stop discussing proposed EU legislation does not alter the Parliament’s role. It’s always open to the Council to stop discussing proposed legislation if there is insufficient interest in a proposal or for any other reason, and it’s not rare for it to do so. Every year, the Commission withdraws proposals because it has given up hope that the Council will ever agree to them (for the most recent such decision, see here). The EP can block proposed legislation too, where the ‘ordinary legislative procedure’ applies; it just does so less frequently than the Council.

A subtler argument is that this clause in the Decision in effect amends the Treaty (and so is therefore inapplicable due to the conflict with EU law) because it introduces a new voting rule in the Council without amending the Treaty to that effect. It’s more problematic than the new rule on delaying Council voting as regards Eurozone issues, since that latter rule doesn’t block the adoption of a proposal, and follows an existing secondary law precedent. However, as with a comparable clause in the ‘fiscal compact’ treaty, an agreement by Member States to coordinate their voting in Council does not amend the Treaties, whether it takes the form of an informal agreement (as it more often does) or a formal treaty to that effect. Even if this rule did breach EU law, how could the primacy of EU law be enforced in this context anyway? By a national court, or the CJEU, telling a Member State to vote a way it didn’t want to vote in the Council? This would be an unprecedented incursion into the relationship between national governments and national parliaments, which the Treaties recognise (in the Protocol on national parliaments) is a matter for national law alone to regulate.

As for the Treaty amendment process, it’s correct to say (as Andrew Duff does) that that the Treaty gives a role to the Commission and EP. But let’s not overstate that role: neither of them can block Treaty amendments, in most cases. The only exception is Treaty amendments which solely concern more majority voting, or more powers for the EP. Yes, the EP can block those Treaty amendments; but that’s about as likely as the Pope opening an abortion clinic.

Otherwise, the EP’s sole power is to insist that there has to be a fully-fledged ‘Convention’, with delegates from the EU institutions, national parliaments and national governments, to discuss proposed Treaty amendments. But the EP can’t set the agenda for the Convention, or determine its outcome. Anyway, that outcome is not binding upon the Member States, which then hold an Inter-Governmental Conference to negotiate the final text – which the EP cannot reject. In short, the most the EP can do is to force everyone to hold more meetings.

What would actually happen, if a ‘Convention’ is established? The last Convention, in 2002-3, had a broad agenda, and in practice the EP was able to steer it toward a highly integrationist conclusion. But any Convention convened in (say) 2017 would now include a lot more national parliamentarians critical of the EU, from every perspective. They might well want to drive the Convention towards a stronger version of the proposed ‘red card’, as well as repatriation of powers from the EU. Anyway, the wording of the Treaty suggests that the agenda of the Convention is limited to the issues originally tabled for Treaty amendment.

So the real impediment to Treaty amendments is not at the EU level. Rather, it’s the risk of rejection in national parliaments (and occasionally referendums), with a further long-stop risk of rejection by national constitutional courts. It’s impossible to guess at this point what would happen to the Treaty amendments foreseen by the draft Decision at national level. So there is no legal certainty that those Treaty amendments would definitely be approved.

On the other hand, the draft Decision itself does not need national parliamentary approval, at least as a matter of EU law (whether some Member States’ law might require it is a separate question). Nor does it need any sort of approval from any of the EU’s institutions – although the planned legislation referred to in the Decision does, of course, need those institutions’ involvement. Since it’s not part of EU law, the validity of the draft Decision could not be challenged directly before the CJEU, although it is possible that a national court could ask whether national implementation of EU based on the draft Decision was in conflict with EU law.

As for the timing, the intention is to adopt this draft Decision before the referendum, and then it would come into force automatically as soon as a ‘Remain’ vote (if there is one) was notified. The Decision would be irreversible in the sense that the UK government would have to consent to amend it or repeal it; this is explicitly confirmed by the draft European Council conclusions. There is no provision for a Member State to denounce it, or any other indication that it’s possible to do so; therefore it is subject to the general rule in Article 56 of the Vienna Convention that a treaty cannot be denounced in the absence of a clause to that effect.

The distinction between the draft Decision and EU law does mean that there is a gap in the Decision’s enforceability. Section E refers to bringing a dispute between Member States about the application of the Decision before the European Council. But unlike the fiscal compact Treaty, there is no provision on bringing a dispute before the CJEU, which could then impose fines. So despite the binding nature of the draft Decision, there would not be a clear mechanism for making it stick. This brings us back to the issue of trust, discussed further below.

Finally, some commentators on the previous blog posts raised the question of whether Heads of State and Government could still act outside the framework of the EU Treaties, given that the Treaty of Lisbon upgraded the status of the EU institution in which they meet – the European Council. In my view, that change in EU law did not transfer the capacity of Heads of State and Government to act to the European Council, except where the Treaty amendments did that expressly (for instance, as regards appointments to the European Central Bank). This follows from the principle of ‘conferred powers’ set out in the Treaties: in the absence of any power for the European Council to adopt anything like the draft Decision, it can’t adopt it.

How can the draft deal be made more legally secure?

Some comments on the draft renegotiation deal expressed doubt that it would go ahead. There are several possibilities for increasing the likelihood that it would do so.

As regards the draft legislation, the Commission could agree to propose its draft comments before the referendum, or at least publish drafts of its planned proposals informally for comment. The European Parliament could vote in principle on whether it would be prepared to agree to legislation as described in the draft deal. The draft deal could commit to making Treaty amendments on more issues, particularly the ‘red card’ clause and the planned legislation which is most vulnerable to legal challenge: the ‘emergency brake’ on migrants’ benefits. The Council Decision on Eurozone governance could be adopted before the referendum already, with the proviso that it comes into force automatically once a 'Remain' vote (if there is one) is notified. As noted above, it should take the form of an amendment to the existing Council decision on voting, to ensure that Protocol 9 to the Treaties applies to it. 

As regards planned Treaty amendments, the potential text of the planned new amendments could be drawn up in advance, although their approval would be dependent upon the EU Treaty amendment process. Again, the European Parliament might indicate in advance whether it would insist on a ‘Convention’ being held or not. Finally, as regards the issue of ‘competitiveness’, the Commission could draw up a list of legislation that it plans to propose or repeal – although that’s more about being more precise than legally secure, as any proposals for new legislation (or repeal or amendment of existing law) would have to go through the EU legislative process.

Can the EU be trusted?

As noted already, the EU has agreed draft Decisions like this one twice before, as regards Ireland and Denmark. It promised a Treaty amendment to Ireland, and delivered it in the form of a protocol several years later. It didn’t expressly promise a Treaty amendment to Denmark, but delivered one anyway, as part of the Treaty of Amsterdam (it’s since been amended). It’s sometimes suggested that the EU tricked Denmark because the CJEU later ignored the Danish opt-out of EU citizenship. But this is a myth: the fact is that Denmark never opted out of EU citizenship. The 1992 Decision on Denmark simply contained clarifications relating to the meaning of EU citizenship (see Section A of that decision), not any form of opt-out.

Another Treaty amendment (in the form of a protocol), relating to the legal effect of the EU Charter of Fundamental Rights, was promised to the Czech Republic if it ratified the Treaty of Lisbon. In this case, there was no Decision of Member States’ Heads of State and Government, but the draft Protocol and the promise were set out in conclusions of the European Council. The Protocol  was subsequently formally proposed, but it was not pursued after a new Czech government withdrew the previous government’s request. It’s possible that the Czech government decision was influenced by the European Parliament, which had voted against the draft Protocol. But as noted above, the EP does not have a veto over Treaty amendments: indeed, even after the EP's objection, the Council recommended that the Treaty amendment process get underway. 

The most the EP can do to stop Treaty amendments is to demand that a 'Convention' be established to discuss them. But remember: the Convention process does not give the EP any kind of veto over a Treaty amendment either. It’s merely an obligation to hold meetings. Ultimately a subsequent Inter-Governmental Conference decides what the final text of those Treaty amendments will be. I sympathise with anyone who rolls their eyes at the thought of attending meetings. But if the Czech government had really wanted to insist upon the adoption of its Protocol, it would have got it in the end.

For those who really don’t trust the EU to deliver on the renegotiation package, there’s one further option to consider. But that brings me neatly to the issue of domestic legal changes in the UK.

Domestic UK law

In his Chatham House speech last year, David Cameron raised the prospect of new UK legislation to limit the effect of the EU Charter of Fundamental Rights, and to safeguard UK sovereignty. I commented on his plans at the time, although it was only possible to make a preliminary assessment in the absence of a text. According to press reports, he is committed to going ahead with these changes. Again, there’s no point commenting further until there is a draft text.

Instead I have two suggestions for further domestic law changes. The first is a substantive point, which I’ll elaborate upon in a later blog post. Currently the European Communities Act is the legal basis for the adoption of secondary UK legislation on the implementation of EU law. But these measures often go beyond the minimum legal requirements of EU law (a process known as ‘gold-plating’); and some object to regulating any more than EU law strictly requires.

In my view, the Act should simply be amended to prevent ‘gold-plating’ taking place at all. The EU should not be getting the blame (or, from the opposing point of view, the credit) for regulation that it does not require Member States to adopt. If the UK government wishes to adopt more regulation than the EU requires, let it table a Bill for a new Act of Parliament, or use the secondary legislative powers conferred by a different Act of Parliament, to do that.

Secondly, can the UK take any unilateral action to ensure that the EU keeps its promises? Obviously, the UK can’t pass a law commanding other Member States to give effect to the renegotiation deal. What it can do is state what its reaction will be if they don’t. Any new Act of Parliament addressing the renegotiation deal could therefore state that the UK government will report regularly on the implementation of the deal. If the key aspects of the deal are not in fact implemented for any reason, and there is no prospect that they will be, it would, as I’ve argued before, be reasonable to argue for another referendum.

These two suggestions – or some variation thereof – might well appeal to those Conservative politicians who are torn between supporting the ‘Remain’ side and appealing to the Eurosceptic wing of their party. It’s the closest they can come to having their cake and eating it too.

Overview: is the draft deal legally secure?

The following table lists the binding elements of the draft deal and summarises how binding they are from various perspectives. This assessment is based on the assumption that the draft of February 2, 2016 would be adopted as it stands; it might have to be updated if that draft is amended before adoption.

Decision of Heads of State and Government (in general)

Binding: in international law

In force: after Remain vote notified

Further approval needed: No, unless national law requires parliamentary approval in some States

CJEU vulnerability: Zero; although CJEU might disagree with some interpretations of EU law

Reversible without UK consent: No

Commitment to amend treaty

Binding: in international law

In force: after Remain vote notified

Further approval needed: Yes, from national parliaments and possibly electorates; Commission, European Parliament have non-binding role in Treaty revision

CJEU vulnerability: Zero; although challenges under national constitutions are possible

Reversible without UK consent: No

Commitment to apply ‘red card’

Binding: in international law

In force: after Remain vote notified

Further approval needed: No

CJEU vulnerability: Low

Reversible without UK consent: No

Council Decision on voting on financial issues

Binding: in EU law

In force: after adoption, on date that Remain vote is notified

Further approval needed: Council has to adopt; no role for anyone else

CJEU vulnerability: low

Reversible without UK consent: No (arguably)

Legislation on free movement issues (3 measures)

Binding: in EU law

In force: after proposals tabled and adopted

Further approval needed: Yes. Commission proposals (political commitment to make them); Council approval (political commitment from Member States to support 2 proposals); European Parliament (position unknown)

CJEU vulnerability: Low-medium for 2 proposals (family members, child benefit); High for emergency brake

Reversible without UK consent: Yes

Photo credit: www.ukrep.be

Barnard & Peers: chapter 2, chapter 3

On knowledge as power: transparency of EU law-making procedures

Päivi Leino (University of Helsinki)

One of the great achievements of the Lisbon Treaty, flagged around its adoption and entry into force, was how the new Treaty would make EU law-making much more transparent. So far, this has remained an unfulfilled promise. Access to documents relating to the EU legislative procedure, in particular trilogues, the informal three-party meetings between the European Parliament, the Council and the Commission used at every stage of the EU legislative procedure, has become particularly topical during the past months.  First, the new Interinstitutional agreement (IIA) on Better Regulation, provisionally approved in December 2015, addresses this question.[1] Second, on 15 December 2015, Emily O’Reilly, European Ombudsman, launched a public consultation on transparency of trilogues,[2] stressing their role as the forum where the deals are done and the subsequent need to consider the proper trade-off between the Europeans’ right to open EU law-making processes and the space to negotiate. Finally, Emilio De Capitani, the previous head of the LIBE Committee Secretariat, has brought an appeal against the European Parliament’s decision to refuse full access documents relating to a legislative proposal.[3] De Capitani argues in essence that granting access to them would not specifically, effectively and in a non-hypothetical manner undermine the legislative decision-making process, and that notably after the Lisbon Treaty, legislative preparatory documents are subject to the principle of widest possible access.

The recent events raise a number of fundamental questions relating to how we understand the function of transparency in law-making that claims democratic foundations. Moreover, since EU law-making is currently not backed up by any shared interinstitutional space where documents and meeting schedules would be recorded in real time, following legislative procedures requires a serious amount of detective work for those with an interest in following them, and increases reliance on a culture of leaks. In brief, exercising your democratic rights should not be this difficult.

The legal framework of law-making in the EU

The main principle in the Treaty of Lisbon is clear: the Council and the European Parliament are to legislate in the open, and are under an obligation to ensure the publication of the documents relating to the legislative procedures. Regulation No 1049/2001 includes some references to legislative documents. Under Article 12(2), legislative documents meaning “documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States” should be made directly accessible unless one of the exceptions under the Regulation is applicable. Therefore, making these documents publicly available should not presume specific requests but should instead take place automatically. These provisions have been subject to the Court’s landmark ruling in Turco concerning access to Council legal service opinions, which stresses how increased openness

enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Those considerations are clearly of particular relevance where the Council is acting in its legislative capacity […]. Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.[4]

In the ruling, the Court set the threshold high in referring to ‘all the information which has formed the basis for a legislative act’: it is clearly not only quantity that is of relevance, but also quality. The legislature needs to provide access to information concerning the key elements on the legislative agenda while the relevant process is on-going and there is a chance to influence it.

However, the institutions, and the Council in particular, have had difficulties with maintaining this standard and turned to a vast number of excuses that risk to water down the principle in rather fundamental ways.[5] In the Council’s view, the application of the Treaty provisions stipulating the publicity of its meeting are restricted to documents that are submitted to the Council for the preparation of the latter’s deliberation or vote.[6] This raises the rather fundamental question of the relevance of the stage of decision-making for the application of legislative transparency. The Council understanding would seem to deprive the principle of much of its democratic effet utile; If the publicity of legislative documents was indeed limited to only those documents that are issued a couple of days before a formal ministerial meeting where a legislative file is to be deliberated or approved, often without any discussion, then transparency would only be applied at the point when the file is to be closed and the process is over. This would effectively hamper access to documents produced during the time when the majority of questions are settled at lower decision-making levels between civil servants, ambassadors and the three institutions. The Council has also argued that the early stage of the legislative process between the institutions, namely first reading, is a point to be taken into consideration. [7] At the same time, a major part of legislative files are closed specifically at first reading: For example in 2009-2013, 83 % of legislative files were closed at first reading, 8 % during early second, 7 % at second, and only 3 % at third.[8]

The relevant provision in Regulation No 1049/2001 in this regard is the ‘space to think’ exception in Article 4(3), relating to situations where a decision has not yet been taken by the institution. The Parliament has repeatedly voiced the argument that the said provision is outdated as far as legislative matters are concerned,[9] and suggested both that no exception would ever apply to ‘documents transmitted within the framework of procedures leading to a legislative act or a non-legislative act of general application’ but also the deletion of Article 4(3) altogether.[10] The latter is a far-reaching proposal that might benefit from further reflection considering that the exception has been used for varying purposes outside the legislative context.

However, Article 4(3) was interpreted in the post-Lisbon legislative context by the Court when Access Info Europe, an NGO promoting freedom of information in the EU, requested access to a legislative document including footnotes indicating the positions of individual Member States. The central question was whether access to Member State positions distracts the effectiveness of decision-making and if yes, which one should take priority, effectiveness or openness. The Council lost the case in the General Court and appealed to the Court of Justice[11] arguing that the General Court’s reading had attached ‘undue and excessive weight to the transparency of the decision-making process, without taking any account of the needs associated with the effectiveness of that process’, and disregarded the balanced approach laid down both in primary law and secondary law between the two objectives. The Council argued that ‘its legislative process is very fluid and requires a high level of flexibility on the part of Member States so that they can modify their initial position, thus maximising the chances of reaching an agreement’. In the Council’s view, identifying the delegations was not necessary for ensuring a democratic debate. The CJEU rejected this with reference to how full access can be limited only if there is a genuine risk that the protected interests might be undermined. The high standard of proof required to establish that level of harm makes it almost impossible to rely on Article 4(3) in this context. In particular, according to the Court,

the various proposals for amendment or re-drafting made by the four Member State delegations which are described in the requested document are part of the normal legislative process, from which it follows that the requested documents could not be regarded as sensitive – not solely by reference to the criterion concerning the involvement of a fundamental interest of the European Union or of the Member States, but by reference to any criterion whatsoever (para 63).

So far, the Court has stood rather firm in promoting transparency of core legislative documents,[12] and is likely to have a word or two to say in the De Capitani case. However, its rulings are of a limited importance as long as it is accepted that the institutions may apply them selectively.[13]

Access to trilogue documents

Trilogues are increasingly taking over as the main forum for making legislative deals between the three institutions.[14] They are the prime example of informal decision-making, which is often glorified in the EU context as the tool guaranteeing efficient law-making.[15] In first reading deals trilogues function as the forum for interinstitutional agreement. The Treaties make no reference to this forum. In the joint declaration on practical arrangements for the co-decision procedure adopted in 2007, the three institutions argue that the trilogue ‘system has demonstrated its vitality and flexibility in increasing significantly the possibilities for agreement at first and second reading stages’. According to the declaration, trilogues ‘may be held at all stages of the procedure and at different levels of representation, depending on the nature of the expected discussion’.[16] The use of informal formats is not in any way restricted to technical, urgent or uncontested files.[17] Trilogues are an incredibly efficient format for accommodating institutional positions, and have led to a great majority of deals being closed early in the legislative procedure.

During the trilogue phase, the EU democratic process is in the hands of very few: the European Parliament rapporteur(s), the representatives of the Council Presidency and Secretariat and a few Commission officials. This phase largely escapes public scrutiny. The joint declaration quoted above stipulates that ‘trilogues taking place within the European Parliament and Council shall be announced, where practicable’, and ‘when conclusion of a dossier at first reading is imminent, information on the intention to conclude an agreement should be made readily available as soon as possible’. There is no mention of access to information while the process is in the substantive phase. Civil society representatives have, for a very good reason, pointed out how trilogues represent the victory of efficient law-making over the formal machinery of law-making, which results in a general lack of transparency.[18]

The informal arrangements surrounding trilogues not only affect public access, but also access within the institutions. Information is power, and the trilogue format empowers those that possess it at the expense of those who do not. Political scientists have demonstrated how within the Parliament, first reading agreements emphasise the discretion given to its own rapporteur(s)[19] and stress the role of responsible committee. Handing out information is in the hands of the rapporteurs, whose tweets commenting on the conduct of negotiations also create a practical avenue to information for many Member State governments. As far as the Council is concerned, first reading agreements mean in practice that deals are effectively concluded before they reach the ministers, since the Council position is settled by Coreper. In principle, feedback from trilogues is given to the delegations either through working parties or Coreper. National parliaments often experience difficulties following decision-making in trilogies, especially since amendments are made at great speed, which hinders their effective scrutiny at national level.[20]

Ombudsman inquiry and the new IIA

The European Ombudsman initiative is therefore timely, even if the objective of ensuring transparency in the legislative procedure reaches beyond its current scope. Last May, the Ombudsman approached the three institutions about their proactive disclosure policies on trilogue documents.[21] In his reply to the Ombudsman, Martin Schultz, President of the European Parliament, describes the current trilogue-related practices in the Parliament, but focuses on its internal transparency and accountability, which he sees as requiring that all political groups may follow and influence the negotiations. This speaks against an undue formalisation of the trilogue process. The Commission challenges the Ombudsman’s mandate to engage in the own-initiative inquiry altogether. In its view, trilogues are a

preparatory step in negotiations of a purely legislative nature and it is hard to see how any aspect of their conduct, such as whether or when to hold trilogue meetings, the choice of representatives by each institution to attend trilogue meetings, whether or which supporting documents to produce etc., can give rise to maladministration, except as regards questions related to public access to the documents used during trilogue meetings.

In its reply, the Commission stresses the internal nature of any possible briefing documents and lack of systematic records of what takes place during the trilogues. And the Council, not surprisingly, agrees with the Commission:

The Council is of the view that the exercise of legislative powers is not limited to the adoption of political choices on the merits of legislative files. It also includes the choices according to which the legislators decide to organise the legislative process itself. The organisation of the legislative process cannot be considered an administrative activity – and therefore cannot give rise to possible instances of maladministration – but ought rather to be regarded as an essential aspect of the exercise of the legislators’ prerogatives.

In other words, hands off legislative transparency, European Ombudsman. And yet, it is difficult to think of a matter where issues relating to access to documents and information in the broad sense would be more vital in a union that is tackling a permanent democratic and legitimacy deficit.  

In the new IIA, provisionally concluded in December 2015, the Commission proposal on how the ‘three institutions will ensure an appropriate degree of transparency of the legislative process, including of trilateral negotiations between the three institutions’[22] is strengthened. The three institutions now commit to ensuring ‘the transparency of legislative procedures, on the basis of relevant legislation and case-law, including an appropriate handling of trilateral negotiations’. For this purpose, they ‘improve communication to the public during the whole legislative cycle’ and ’undertake to identify, by 31 December 2016, ways of further developing platforms and tools to this end, with a view to establishing a dedicated joint database on the state of play of legislative files’.[23] While promises carry little weight if institutional attitudes remain unchanged, the latter commitment could contribute not only making more documents available earlier in the process and making their identification easier, also to shedding light on the vast number of legislative documents that are currently not made public while the process is pending.

In more than one way, the recent debates illustrate how knowledge is power; therefore, those that are in possession of it are unlikely to volunteer to distribute it. In this respect, what we need is a much more political debate on the way in which the exercise of democratic rights is effectively exhausted, often in practice through the choices of technocrats in the EU institutions, who make choices about how individual requests for documents are answered and which documents are placed on the web. Are the current institutional politics acceptable, or are they not? And more fundamentally, is efficiency such an overarching value that it triumphs in all circumstances over all other objectives, such as securing a transparent and democratic decision-making process?

Photo credit: pressgazette.co.uk

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[1] Provisional text of the proposed interinstitutional agreement on better regulation, dated 16 December 2015, available at http://ec.europa.eu/smart-regulation/better_regulation/documents/20151215_iia_on_better_law_making_en.pdf, Article 28-28a.

[2] http://www.ombudsman.europa.eu/en/press/release.faces/en/61593/html.bookmark .

[3] Case T-540/15, De Capitani v European Parliament.

[4] Joined Cases C-39/05 P and C-52/05 P Kingdom of Sweden and Maurizio Turco v the Council, paras 45-46 

[5] See also Päivi Leino, “Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’”, EUI Working Paper (LAW 3/2014). Available at http://cadmus.eui.eu/bitstream/handle/1814/30580/LAW_2014_03_Leino.pdf .

[6] See the Council reply to Confirmatory application No 05/c/01/12 by Ms Anneli Jäätteenmäki, MEP.

[7] For the Council’s reply to ClientEarth, see http://register.consilium.europa.eu/pdf/en/10/st12/st12068.en10.pdf . 

[8] The figures can be found on the Parliament’s website http://www.europarl.europa.eu/code/about/statistics_en.htm . 

[9] The ‘Hautala / Sargentini report’, Public access to documents 2009-2010 European Parliament resolution of 14 September 2011 on public access to documents (Rule 104(7)) for the years 2009-2010 (2010/2294(INI)) P7_TA(2011)0378. 

[10] Public access to European Parliament, Council and Commission documents (recast), P6_TA(2009)0114 A6-0077/2009 . 

[11] C-280/11 P Council v Access Info Europe. 

[12] Even if the General Court recently made a true bummer relating to impact assessments, which play a key role in the early stages of the legislative procedure; see T-424/14 ClientEarth v. the Commission.

[13] See Päivi Leino, “Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’”, EUI Working Paper (LAW 3/2014); available at http://cadmus.eui.eu/bitstream/handle/1814/30580/LAW_2014_03_Leino.pdf

[14] ‘Shifting EU Institutional Reform into High Gear: Report of the CEPS High-level Group’, pp. 1-24, Report available at http://www.ceps.eu/book/shifting-eu-institutional-reform-high-gear-report-ceps-high-level-group .

[15] See in greater detail, Päivi Leino “The Politics of Efficient Compromise in the Adoption of EU Legal Acts” in Marise Cremona (Ed.), EU Legal Acts: Challenges and Transformations, Collected Courses of the Academy of European Law (Oxford University Press, forthcoming 2016.)

[16] Joint declaration on practical arrangements for the Codecision procedure. OJ 2007 C 145/02 .

[17] See Bressanelli, Héritier, Koop and Reh, ‘The Informal Politics of Codecision: Introducing a New Data Set on Early Agreements in the European Union’, EUI Working Papers RSCAS 2014/64.

[18] See e.g. Bunyan, ‘European Parliament: Abolish 1st [and 2nd] reading secret deals – bring back democracy ‘warts and all’’, Statewatch analysis available at: http://www.statewatch.org/analyses/no-84-ep-first-reading-deals.pdf

[19] Discussed in Hix and Hoyland, ‘Empowerment of the European Parliament’, 16 Annu. Rev. Polit.Sci (2013) 171, at 184. For rules concerning the Parliament’s representation and position-building, see European Parliament Rules of Procedure, Rule 70.

[20] House of Lords Report with Evidence. Codecision and national parliamentary scrutiny, HL Paper 125 (2009) 15-16.

[21] The opinions are available on the Ombudsman website, http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/61592/html.bookmark .

[22] Proposal for an Interinstitutional Agreement on Better Regulation, COM(2015) 216 final.

[23]  Provisional text of the proposed interinstitutional agreement on better regulation, dated 16 December 2015, available at http://ec.europa.eu/smart-regulation/better_regulation/documents/20151215_iia_on_better_law_making_en.pdf .