Looking through the federal lens: The Semi-parliamentary Democracy of the eu



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The Jean Monnet Program
Professor J.H.H.Weiler

European Union Jean Monnet Chair

Jean Monnet Working Paper 5/02


Philipp Dann
Looking through the federal lens:

The Semi-parliamentary Democracy of the EU

NYU School of Law New York, NY 10012


All rights reserved.

No part of this paper may be reproduced in any form

Without permission of the author.

ISSN 1087-2221

© Philipp Dann 2002

New York University School of Law

New York, NY 10012

USA


Looking through the federal lens:

The Semi-parliamentary Democracy of the EU
By Philipp Dann 1


1.Two types of parliaments in their approach to election and standards of their evaluation 26

2.Again: two types, their approaches and standards of evaluation 31

3.Two types of parliamentary involvement in lawmaking 38

II.The pieces put together: A model of parliamentary democracy in the executive federalism of the EU 47



Comparative literature on legislatures and US Congress 52

European Parliament, powers, functions and organizational structures 52


Abstract:
This paper will reconsider the question of parliamentary democracy in the EU. Yet, it will approach this already intensely debated problem from a specific perspective: full understanding of the parliamentary system in the EU, so it argues, is enhanced if the specific federal structure of the EU is taken into account. This structure, named and described here as executive federalism, renders the EU a system of intensive executive cooperation and of consensual decision-making.

With regard to the national parliaments (NP), this system has dramatic consequences. Even after considerable changes in the scrutiny systems of the NP as seen in the 1990s in most member states, the present paper argues that understanding the federal conditions of parliamentary democracy in the EU basically rules out intergovernmentalist approaches to European democracy, or proposals like a second chamber of the EP composed of NP.

In the center of this paper will therefore stand the analysis of the EP. It proposes to reconsider its structure as legislature in a setting of separated institutions sharing powers, dwelling again on the consequences of the executive federalism and on a comparison with the US system. The EP and its main functions will be analyzed along two ideal types of legislatures: the working parliament, on one side, as a legislature separated from the executive and centered around strong committees (exemplified in the US Congress), and the debating parliament, on the other side, as a legislature characterized by a fusion of parliamentary majority and government as well as a mainly debating, not policy-making plenary (exemplified in the British House of Commons). Comparing the EP step by step, or function by function with these two types, the EP can be identified basically as working parliament, more specifically as a ‘controlling parliament’. The present paper thus suggests to re-think our understanding of the EP, beyond the typically European model of debating parliaments and closer to the American example.

These parliamentary aspects of the EU are, so it will finally be proposed, sufficiently prominent and distinct to characterize the EU system generally as a semi-parliamentary system.

Introduction

The question of parliamentary democracy in the European Union is often presented as a dichotomous choice: either the EU is understood as an intergovernmental structure and the main part of its legitimacy has thus to stem from national parliaments (NP); or, the EU is perceived as a supranational entity from which is inferred that the European Parliament (EP) shall contribute the major share of democratic legitimacy2. Much less noticed but equally fundamental is another dichotomous perspective on European democracy: Vernon Bogdanor described its future in a seminal article in 1986 along an either parliamentary or presidential path3. The parliamentary model is contrasted here with a system in which the Commission is directly elected, thus resembling a presidential system.

Yet, the development of European democracy is hardly a deliberate choice of which path to follow, or which political preference to pick. Quite the opposite: the European political and institutional system seems to be such distinct a system that the problem has rather been how to fit parliaments into its very specific design, if at all4.

This article will reconsider the problem of European parliamentary democracy, starting with a look at this distinct political system. As one of its main characteristics stands out the federal5 or multi-layered structure of the EU. This federal system turns out to be a coherent structure which renders the EU a system of intensive executive cooperation and of consensual decision-making. As such it becomes of salient importance for the functioning of parliaments within the EU institutional setting. Looking at the parliaments through the lens of executive federalism, as I will call the federal system, and with the different avenues of democracy, sketched out above, serving as guideposts and as inspiration, this paper will present a concept of European democracy which is centered around the EP as a strong and policy-shaping legislature, only marginally assisted by the NP.

As to the NP and the intergovernmental avenue, this approach first of all teaches us why it is a fallacy to expect a main part of democratic legitimacy in the EU from member state parliaments. Even after considerable changes in the scrutiny systems of the NP as seen in the 1990s in most member states, this paper argues that understanding the federal conditions of parliamentary democracy in the EU basically rules out intergovernmentalist approaches to European democracy, or proposals like the creation of a second chamber of the EP composed of NP6.

With regard to the EP, especially Bogdanor’s description inspires a new idea of how to conceptualize this already excessively described institution. This paper suggests a reconsideration of the EP as legislature not quite in a presidential system, but in a setting of separated institutions sharing powers, based on the federal setting. Dwelling on the comparison with the US Congress and analyzing the way it functions along two abstract types of legislatures, the EP can be conceptualized as a ‘controlling parliament’. As such it is characterized here by its separation from the executive branch and the way it acts more through its powers to control and prevent than to independently achieve, and by being centered less around debates in its plenary than around its influential committees. These features render it a strong, policy-shaping institution7.

But European parliamentary democracy seen through the federal lens is not a question of either EP or NP. Especially with regard to treaty revisions and constitutional matters, the position of parliaments in an executive federalism is best served by a combination of parliamentary efforts. It is here that the EP and the NP can work together and where the involvement of NP makes practically and theoretically the most sense8.
By reconsidering the role of parliaments along these lines, this paper addresses another central dilemma of parliamentary democracy in the EU, which is how to square the parliamentary and majoritarian understanding of democracy with the consensual, non-majoritarian, or as it could be also named: federal nature of the EU9. Instructed by the comparison with a legislature in a non-parliamentarian democracy (mainly the US Congress), this paper presents the picture of a non-majoritarian system with strong federal legislature. Yet, it is neither a truly parliamentary nor a presidential system. Instead, it is a system based on a negative parliamentary power to determine the executive and a consensual method of decision-making. I will finally call it hence with a new term, a ‘semi-parliamentary democracy’10.

The argument will be developed in four steps: A first one will briefly sketch out the distinctive features of what is here called executive federalism (part II). The second step will describe how the federal setting affects the NP and their way of contributing to democratic legitimacy of EU governance. It also explains why only a fundamental change of the federal structure could remedy their problems (part III). Step three will reconsider the role of the EP. Along its major functions of election, control, lawmaking and representation, and in constant comparison with two analytical models of legislatures it will conceptualize the main features of the EP as a controlling parliament in a separated system of legitimacy (part IV). Finally, conclusions will be drawn and a model of parliamentary democracy and the EU as semi-parliamentary system will be described.

The federal framework of parliamentary democracy: The EU as executive federalism

Parliaments work in an institutional environment. They interact with other institutions and actors in a vertical as well as in a horizontal dimension. Parliaments in general can therefore only be understood by reflecting on the overall political system in which they are set11. This is especially true for the role of parliaments in the EU, for several reasons12, most importantly the one which in a nutshell contains a central idea of this paper: the federal system of the EU as executive federalism is a specific structure which triggers a certain institutional dynamic and forms a coherent, non-majoritarian system. It is this framework into which the parliaments have to somehow fit13. Thus, only an understanding of the peculiar federal surrounding will enable us to adequately understand the problems and perspectives of parliaments in the EU.

Yet, the approach chosen in this paper should not be mistaken. Executive federalism is not another theory of integration or a comprehensive approach to the gestalt question of the EU. Rather the opposite: executive federalism is not singular or original to the EU but instead a general pattern of federal organization, to be found in other federal systems too14. This paper is hence more concerned with understanding the existing (and for all probability: lasting) institutional set up of the EU15.


Three elements of executive federalism
The specific structure of executive federalism in the EU can be described along three characteristic elements: the system of competencies, the Council as its institutional core and a certain, consensual mode of decision-making. This description obviously does not aim to give a comprehensive account of the federal system. More humbly, it hopes to demonstrate the particularity of the structure and especially, how its different elements are almost logically connected and cohesively intertwined, triggering their specific institutional dynamic.
An interwoven structure of competencies
The concept of executive federalism is, most fundamentally, rooted in an interwoven structure of competencies. This means, quite simply, that making laws is the domain of the federal (in the EU: supranational) level but implementing that same law is the domain of the state (or here: national or even subnational) level. And on the other side, both layers cooperate in the use of their powers, thus states help to make federal law and the federal level helps to implement it. Both layers of the federal system are thus knit together in the creation as well as the implementation of law. This structure can most clearly be contrasted with the American model of a dual federalism, where every level is autonomously organizing its lawmaking and its implementation, the federal level and the state level16.

Within the constitutional order of the EU, this interwoven structure is based on Art. 10 Treaty on the European Communities (TEC) which places on member states the duty to “take all appropriate measures to ensure the fulfillment of the obligations arising from the treaties” and entails a principle of loyal cooperation17. This is underlined by the principle of subsidiarity in Art. 5 TEC. In effect it means that the EU has (with some specific exceptions) no original competencies to implement EU law, but the member states have18.

A brief example might demonstrate this structure and some of its consequences. Let’s take the EC regulation on the supervision and control of shipments of waste within the European Community19. Art. 130r TEC (now Art. 174 TEC) obliges the EU to contribute to the pursuit of an environmental policy within the Union, of which the treatment of waste is a part. Art. 130s (now Art. 175 TEC) attributes the power to act upon this obligation to the Council (now together with the EP), on a proposal which has to be made by the Commission. Thus, it was the Council as an institution of the EU, which in interplay with the Commission and the EP enacted our waste regulation in 1993. Yet, when it comes to the question of who is actually going to organize and control, hence implement the waste transportation in accordance to this European regulation, it is the public authorities of the Member states (often supported, though, by the Commission). According to Art. 3 and 4 of the Regulation, for example, every transport has to be notified, not to the European Commission but to the competent authorities in the concerned member states, who then act procedurally in accordance with the regulation and the national laws in place in the concerned member states (e.g. Art. 3 par. 7). The transport later on takes place only after the notifier receives permission from the national authority, again not the Commission (Art. 5, par. 1). This system of national authorities acting on behalf of European law characterizes the whole implementation process.

Imagining now, how this regulation was drafted and how it is implemented, demonstrates the consequence of the interwoven competencies: if the Commission wants to unify a policy, e.g. the shipment of waste, perhaps on request of a national government or the EP, it has to unify and accommodate 15 different laws and governments, because: every member state, most probably, already has rules regulating this question, or, most definitely, has distinct opinions and interests. Thus, detailed communication, negotiation and finally cooperation between both levels of the federal system is necessary to adjust the European proposal to the already existing legal and administrative system of the member states that regulate the concerned question.

This kind of cooperation is organized and harbored in a special institution which shall be regarded as the second central element of the concept of executive federalism: the Council.
The Council: institutional counterpart to the interwoven competencies
The Council is the congenial institutional counterpart to the specific division of competencies in the EU. Its composition, organization and powers offer what the interwoven competencies require, that is, a meeting point for actors from the national and supranational level20, a meeting point for politicians and bureaucrats, a place to negotiate, legislate and implement. As such it becomes an absolutely central institution of this federal system21.

The Council’s special role derives, first, from its composition. The Council “consists of a representative of each Member State at ministerial level” (Art. 203 TEC). Thus, its members are not directly elected but sent in their function as members of national governments. As such they are either elected in their national elections, or (even more often) only appointed or nominated by their Prime minister. As such, it forms a sharp contrast to most other federal chambers, who are organized for example as the US Senate22.

Specific to the nature of the Council is also the mandate of its members and their self-understanding. US Senators are elected politicians, chosen to act in the Senate, free to take any position they want. Council members, in contrast, are representatives of their home government, they are “authorized to commit the government of the Member State” (Art. 203 TEC). Thus, they have to follow the guidelines agreed upon in their cabinet or given by the Prime Minister, and have to negotiate within these margins23.

Yet, the Council is much more than just the round of national ministers. They form only the top of a complex system, best described as a pyramid of groups, in which national politicians and bureaucrats convene and negotiate. This pyramid (or rather: funnel) has mainly three tiers: the Council as meeting of the ministers, the Committee of Permanent Representatives (COREPER24) and the Working groups. Their composition and functioning shall briefly be explained by tracing the negotiations on a new bill because it demonstrates the procedural logic evolving from the interwoven competencies. That is the logic of executive cooperation:

It is the sole right of the Commission to introduce bills. Yet its first25 and most important reality test comes when it is first discussed in a Council Working group, composed of national civil servants from each member state who are responsible for the specific matter26. They discuss the proposal and check out how it fits into the administrative and legal systems of their respective state. This can often take a long time, but it also clears most of the often very technical complications coming along with a bill which has to be implemented in fifteen different legal systems. A proposal then goes to the COREPER, which consists of the national ambassadors to the EU, thus career diplomats who stay for long terms in Bruxelles. Whereas Working Groups are put together flexibly to discuss one specific proposal and are then dissolved, the COREPER is a permanent body.

The COREPER, which is often seen as the most powerful part of the EU, serves as a clearing point: it checks every proposal, and negotiates those issues which rest unresolved in the working groups27. Since it is not split up in specialized groups28 for every proposal, it gathers a supreme overview of what is going on in different fields. It also accumulates immense expertise. Last but not least it is this aspect, which allows its members to strike more deals and settle political issues than the Working Groups29. Only what is highly political and not negotiable, stays undecided here and finally has to be negotiated by the national ministers at the top of the pyramid30.

Now, one more important characteristic has to be added: the Council has no plenary. The ministers convene in accordance with their field of responsibility, as Ministers of Finance, as Ministers of the Environment, etc31. As a consequence there is no place for general discussion but only for sectorial negotiation. It is an extremely complex system of negotiating groups, with barely any hierarchy and most difficult to control by any party or country32. It is thus distinctly different from a parliament.

Although this composition and internal organization is of salient importance, it is finally the powers which render the Council the central institution in the EU. And it is this aspect which renders it also a highly characteristic feature of the executive federalism in the EU because the Council’s powers are spread from legislative to executive areas, thus defying any sort of traditional separation of power scheme but serving the structure of interwoven competencies.

With regard to lawmaking, especially regular or secondary decision-making, the Council of Ministers plays a dominant role, although it is not as often falsely portrait the lone center of it. Despite the important influence of both Commission33 and European Parliament34, the Council is majorly involved in all procedures, Art. 250 et seq. TEC. Next to these legislative functions, the Council has a major role with regard to the executive functions. It is, first of all, involved in the taking of implementing decision, based legally on Art. 202, third indent and the Comitology decision EC/468/99 regulating the procedures35. The Council also has quasi-governmental functions, such as directing the EU and giving political input and guidance.

It is crucial to realize that these powers and the broad involvement flow from interwoven competencies. The Council has to participate in lawmaking (and facilitates executive tasks) because it is national authorities which finally implement and administer these policies. The early as well as influential involvement of national actors is thus entrenched in the interwoven structure of competencies, in the system of executive federalism.


The structure of competencies thus depends on an institution in which these interwoven powers are handled and used. The Council provides exactly that. Yet, it is a third element that complements the system of executive federalism and renders it workable: the specific decision-making method.
Consensus method in the Council and the EU as consensus democracy
It has often been highlighted as specific to the supranational nature of the EU that the Council as one of its major decision-making bodies does not act by unanimity, but by majority rule, hence distinguishing the EU from any form of international organization36. Yet, it is evenly well-known, that this is not the full truth. Despite an often applicable majority rule37, the Council mostly acts according to a decision-making method, which has been described as consensus or just Community method38. Here, solutions are sought through ongoing negotiations, openness to compromise and the incorporation of as many parties as possible (if not all). This method is based on mutual trust and the expectation of gaining more by giving in to a certain extent, and being re-paid in another round. And it is in no minor part, based on the secrecy and confidentiality of the negotiations in the Council39. In a sense, the Council thus adheres to two rules: behind the formal majority rule there is an informal consensus method40.

Now, looking at the EU through the lens of executive federalism, the Council seems to be almost necessarily a non-majoritarian system41. Put differently, as long as the EU has interwoven competencies and a Council structure as just described (i.e. an executive federalism), the Council has to work on a consensual basis. The consensus mode seems to be both enhanced by and necessary for executive federalism. There are mainly three reasons for this connection:

(1) There is, first of all, the federal heterogenity of the EU, which seems to simply require an inclusive, consensus-based decision-making method to function as a political system. It has been the great achievement of the theory of consensus democracy to show that culturally, religiously, linguistically or otherwise divided societies developed an original mode of decision-making which enables them to find a peaceful way of dealing with cleavages and conflicts42. This method is based generally on inclusion, i.e. on consensus and compromise in decision-making and on the proportionate accommodation of all parties in responsible offices of government. Thus, it forms a contrast to competition and exclusion, which shape systems organized by majority rule.

It needs no further explication, that the EU is a deeply plural and heterogeneous mix of cultures, languages, religions, simply: quite proud nations. Thus, the mere fact of the existence of these cleavages in the EU makes a consensus method (at least to a certain extend) necessary43.

(2) If consensus method in the Council is required by the diversity of interests, it is facilitated, on the other side, by the similarity of the Council’s members. As described above, negotiations in the Council are mostly a deliberation of national and supranational civil servants. Despite linguistic, political or other differences, these civil servants very often share a common education (law, political science), a common professional background (national administrations) and grow closer over their ongoing contact. It is this common habit that creates a certain Club spirit, as it is called (or Esprit du Corps or Fachbruderschaft) that facilitates compromise and consensus44.

(3) Finally, a third point explains why the consensus method is entrenched in the structure of executive federalism. That is the issue of implementation. It is an obvious observation, that a solution is more acceptable, if the different parties agree on it. In the EU, as we saw, the implementation of EU norms rests on the member states, their legislatures as well as their bureaucracies. Thus, to return to our example, the EC regulation on waste shipment will have a greater chance of being properly implemented by the national bureaucracies, if it was decided in consensus45. The consensual method enhances the implementation and thus the efficiency of European law46.

With regard to these observations, the consensus method can be regarded as a third complementary element of executive federalism, as such being not only existent but being necessarily evolving (and remaining) in this setting of executive federalism.
This point can be taken even further. The EU can be characterized generally as a consensus democracy47. Of course, as always in social science, there are several approaches to define what a consensus (or consociational48) democracy entails. Already the two founders of consensus theory, Lijphart and Lehmbruch, differ partly in their approaches. Lijphart uses a set of institutional and legal patterns to determine whether a polity qualifies as consensus model49. Lehmbruch is more focused on the specific form of conflict regulation, exemplified best in the institute of the amiciabilis compositio, and the proportionate accommodation of groups in public offices50. Whatever approach is chosen, the baseline is that the model of consensus democracy is an inclusive system based on non-majoritarian and consensual decision-making51.

Looking now at the EU, the consensus method is prominent in all layers and forms of Council decision-making. Even the most important version of the majority rule in the Council, the qualified majority, is a highly sophisticated super-majority which could in fact be classified already as a consensus52. But what’s more important: the method in the Council has a spill-over effect on decision-making procedures in other organs as well, even and especially in the EP53. It is for this effect54, that the system of executive federalism and the EU can be qualified as consensus democracy.

Yet, it was none other than Joseph Weiler who argued that the EU has three different modes of governance and decision-making, best characterized thus by three different models of democracy. The consociational method, so he argues, is confined to the intergovernmental layer of the European polity, whereas the supranational layer of governance follows a Schumpeterian model of competitive elitism and the infranational level is democratically characterized by a neo-corporatist, or in more recent terminology: deliberative mode55. This idea of a trilogy of democratic models is a highly intriguing approach since it liberates the discussion from an often hampering and rather forced attempt to find the one fitting label. Instead, it acknowledges differences and their simultaneous existence. However, I want to make two cheeky arguments against Weiler’s tryptichon and in favor of one picture, describing the EU generally as a consensus model: First of all, I would claim that there is a strong stream of consensus decision-making even in the EP, which is considered a main actor in the supranational layer of Weiler’s trilogy. Weiler ascribes to this layer a Schumpeterian elites model of democracy. Yet I think, it would be too easy to qualify that as Schumpeterian competition of elites, since it is exactly the exchange of elites which is crucial in Schumpeter’s (or Weber’s)56 approach but does not take place in the EU. And secondly, I wonder how far apart the in these times fashionable deliberative approach, which Weiler ascribes to the third layer of governance, is from the (admittedly slightly worn off) consensual method57. Surely, consensus theory lacks the fancy Habermasian philosophical background. But beyond the fact that there might be different actors (cabinet members here, civil servants and lobbies there) is the cooperative search for compromise that much different from the (presumably) free deliberation of equals?
Comparative coda: systemic coherence and institutional dynamic of executive federalism, lessons from the German experience
In sum, the concept of executive federalism is an institutional setting with three characteristic elements: a structure of interwoven competencies between the federal layers, a Council as federal chamber and institutional core, harboring the necessary processes of cooperation and, thirdly, a consensus method facilitating the accommodation of the diverse interests. Overlooking these elements, the comparativistically instructed reader might spontaneously be reminded of the German system of federalism. In fact, it is fascinating to notice that these elements are not unique to the EU but resemble not only partly national forms of federalism58, but are very similar to the federal structure in Germany59:

The German system is based on the same sort of interwoven competencies (Art. 30, 83 Grundgesetz), knitting together the two federal layers. The Bundesrat as a federal chamber is to its very details of organization and structure like the Council60. And we even find the consensus method as dominant decision-making mode there61. Thus, in a fascinating way the German system echoes the features just described in the EU62.

It is from this comparative perspective now that the coherent nature of the concept of executive federalism and its inherent institutional dynamic become especially apparent. Comparing these two system, we realize that these elements of executive federalism are not unique to the EU or due to its intergovernmental structure but form an ideal type of federalism in the Weberian sense that can be contrasted to other federal structures63. Its elements are deeply interlocked, condition each other and, what becomes most important, trigger a specific institutional dynamic64. The interwoven structure of competencies not only entails, but demands enhanced cooperation between the layers of the federal system. Weaving together legislation and implementation, this structure also demands the prominence of executive actors in the law-making procedure of the federal level since only the bureaucracy of the sub-level has the knowledge, resources and power to render the common legislation workable. Looking at the diversity of interests and the peculiarity of harmonizing the legal system, it finally becomes quite obvious that only a consensus method can render this intertwined and cooperative system workable and produce results, turning the whole system into a consociational system of governance. It is this logic that we find in the European just as well as in the German system65.

Pondering on this analogy, we can now imagine why this structure is highly important for the functioning of parliamentary democracy. This is so quite generally in two ways: first of all, the coherence of the system entails that single aspects of it (transparency of the Council, for example) are not easily changeable. And secondly, since they are so deeply embedded in the institutional and even sociological structure of the EU, new institutions (as the parliaments in the EU system still are) have to somehow fit into the pre-existing logic. This means especially, that parliaments have to fit into the consensual mode of institutional communication.

It is also in this respect that the German example might help to identify recurring problems of parliaments in the structure of executive federalism. Most obvious are the problems of member state parliaments in that system. We will examine those now.

The Dilemma of National Parliaments in the EU


National parliaments are supposed to infuse democratic legitimacy to European governance by controlling the national governments as they are acting in the Council of Ministers. They are also considered to be the sovereign actors in constitutional matters as ratifying treaty reforms or the accession of new members, in theory66. But in practice their supposed influence is dramatically undercut. Although this is well-known, it is much less well-explained. Building on the structure and institutional logic of executive federalism in the EU, I will argue that it is this structure which explains most coherently and comprehensively their problems and the underlying dilemma.

After a brief overview of the NP’s role in the EU system, I will therefore concentrate on describing why the federal logic impedes the NP from effectively controlling their governments and – inferring from that analysis – why only a fundamental change of the federal system would alter their situation.


A brief overview: The NP’s involvement in EU affairs on the European and national level
There is not enough space here to describe the role formally ascribed to the member state parliaments. Also, this has been done elsewhere in length and in a critical manner67. Yet, two short remarks shall characterize their formal position, considered on a European and a national level:

(1) NP are only at the very outset part of the Union’s legal and political system and its decision-making procedures68. They are neither organs of the Union nor mentioned in the core treaties. Only in a declaration added to the Treaty of Maastricht, and in Protocol No. 23 of the Treaty of Amsterdam does their role seem to have been discovered more than firmly acknowledged. The Amsterdam Protocol basically obliges the Commission to hand over information to the NP. Also, it encourages the cooperation of the NP in the COSAC69 and grants it the possibility to submitting opinions. Yet, these rules are weak and without binding force70.

A more substantial role is played by the NP in constitutional matters such as treaty reform, Art. 48 TEU, or the accession of new member states, Art. 49 TEU71. But practically, this is not a very influential position, since they are confronted with a take-it-or-leave-it decision with only minor informal involvement during treaty negotiations and Intergovernmental Conferences (IGCs). Criticizing or even obstructing the government’s agreement in the IGC, when it is voted on in the NP, also runs counter to the logic of parliamentary systems in most member states. Another role for the NP could be seen in the implementation of EU directives. But beyond the fact, that directives are mostly so detailed that they leave little room for national influence, this task is in most member states ascribed to the government72.

(2) National parliamentary control of European affairs has instead been dealt with primarily in national constitutional or specific parliamentary law73, both in procedural and in organizational ways74. In procedural perspective, the parliaments have set up regimes to obtain information about European affairs in due time and make their governments report about them. They also partly created systems to bind their governments on prior parliamentary approval75. On an organizational level, all EU member state parliaments have created committees on European affairs76. These committees either use the before-mentioned instruments themselves, or they serve as principal interlocutor and organizer for specialized parliamentary committees which from time to time deal with European matters.

The committees on European affairs together form the COSAC which is an increasingly active meeting point of national parliamentarians. Convening twice a year, it is used to exchange experiences and to promote the case of national parliaments in treaty reforms77.
Hunting the hedgehog, or: Why the logic of executive federalism hinders the national parliaments from being democratically effective

Despite these efforts of NP to get involved, the structure of executive federalism seems to undercut their ability to effectively control their governments and thereby contribute to the parliamentary legitimacy of European governance. There are four major problems that arise from the federal structure:

(1) First and most fundamentally, this structure renders the member state parliaments mediated actors in European affairs. It is not national parliaments but national governments that are involved in the regular procedures of supranational lawmaking. And what’s worse: seen through the lens of executive federalism, it makes perfect sense to organize it this way. Through this lens we see interwoven competencies which demand actors in the lawmaking process that can provide the administrative knowledge, the bureaucratic resources and finally the political thrust to negotiate and to enforce a supranational law. Thus, it makes perfect sense to involve the member state governments and their bureaucracies since they are the ones who finally have to implement the supranational law78.

In consequence, NP have to watch European procedures from the outside. Even if the Commission and the respective government provide them with information in due time, they are not at the negotiating table and thus lack detailed insight information and closeness79. Also, the timetable of European lawmaking is not geared towards the working rhythm of NPs. Very often, therefore, they miss crucial aspects or are still fighting with a bulk of information instead of deciding80. And finally: often national parliamentarians lack in-depth expertise on European matters, knowing and seeing only their national system and being much less informed about the workings of other systems. Bureaucrats, on the other side, often work much longer and are more focused in one specific area, and are therefore able to acquire greater expertise81.

Thus, the mediation of national parliaments in European affairs, which follows form the structure of executive federalism, dramatically increases their problems in performing an informed and timely control of their respective governments.

(2) Executive federalism also entails especially complex lawmaking procedures, characterized by intensive inter-institutional communication. These aspects aggravate the basic problems of national parliaments, such as the just described lack of information, time pressure and missing expertise. As shown above, the preparation of supranational law in a system of interwoven competencies requires intense negotiations between the fifteen member states and between the Commission, the Council, and to a growing extent also the EP. Due to this specific structure these negotiations often take place in informal meetings, arranged at short-notice and without any formalized or published documents at hand. Besides, fundamental positioning is often done in very early stages of negotiations and especially with regard to these early, more-whispered-than-drafted stages, the chances for parliaments to be informed are bleak82. These very fluid, flexible and multi-sided negotiations which characterize European lawmaking, are especially difficult to control for outside actors like the NP83.

(3) Executive federalism has another problematic consequence, already indicated above: the inter-institutional and multi-sided decision-making process is often based on confidential negotiations between governments and bureaucracies. It is quite obvious that this poses another major problem for control through the NP84. Again, this confidentiality is not just a nasty trick of governments but a necessary ingredient of the institutional setting in executive federalism. Especially Lehmbruch’s works on consensus democracy have demonstrated, how compromise and consensus are based not only on mutual trust but on the freedom of the actors to strike deals and not being too confined by the constant control of their constituencies85. Thus, the urge of parliaments to publicly discuss and control collides with the confidentiality of EU negotiations.

(4) And finally, executive federalism works to a great extent by consensus. This aspect adds another two problems for national parliamentary control.

First of all, the consensus method is based on fairly unbound actors. In order to reach agreements, every party has to be free to make a compromise, to give up on certain aspects or to combine aspects in a package deal. If consensus is to work, then parties cannot be bound to an especially rigid mandate from their constituency. This applies also to governments in the Council. Now, parliaments, on the other side, will aim to give a mandate or set more or less stringent margins for their governments in order to actually influence the behavior in negotiations. Otherwise, they would just listen and agree. Thus, parliamentary mandates collide with governmental freedom to negotiate.

Secondly and more fundamentally, consensus is based on compromise, on combining different approaches. Compromises thus are gray, they are neither of two clear cut options but their gray middle. The logic of parliamentary politics, on the other side, is based on a majoritarian and mainly binary mode86. Parliaments display the contrast of government and opposition, of two contrasting policy options and of winner and loser in concrete votes. Each party in parliament stresses and contrasts its own position against those of other parties. National parliaments, which want to control what their governments do in Bruxelles, have to deal with a lot of consensual gray. This is especially difficult87. Consensus mode in the Council collides with the habit of parliamentary contrasting in national parliaments.


In sum, national parliaments trying to control their national governments and especially the thousands of national civil servants who travel to Bruxelles for various Working Group negotiations, are like the fairytale rabbit hunting the hedgehog: whenever the national parliamentarians seem to get a grip on a matter, the multi-layered and multi-facetted Council seems to have already moved to the next stage, presenting an already fixed agreement at the next corner and leaving the national parliamentarians looking on from behind.
And why only a fundamental change of the federal system would alter the NP’s situation
It could be argued now that if the NP cannot effectively control and thereby legitimize European governance so far, then their means have to be improved. And a lot has been done in the 1990s as parliaments have built up or improved their scrutiny systems and created special committees for European affairs. Also, the EU itself has acknowledged the importance of NPs being involved in European developments88. Nevertheless, the business of NPs is still excruciating and laborious, not the effective control envisaged.

To overcome this dilemma, there are mainly three routes along which a qualitative improvement of the involvement of the NPs is discussed today. There is, firstly, the proposal to create a European organ composed of national parliamentarians, be it in form of a re-birth of the pre-1979 EP89, be it as a third chamber next to the Council and EP90, or be it the replacement of government actors through parliamentarians in the Council when it acts as legislature91. All these proposals have in common the goal to end the mediation of the NPs by introducing them directly into the institutional scheme of the EU.

A second path recommended is the strengthening of inter-parliamentary cooperation, especially in the frame of the COSAC. This, so it is argued, would remedy their lack of information or expertise and simply improve their standing in fundamental European matters. Especially scholars, who picture the EU as a form of deliberative democracy have interpreted the COSAC as strong enhancement of parliamentary deliberation92.

Finally, there is hope to restore national parliamentary influence in treaty reforms. The NP’s position here, as mentioned above, is rather bleak. But the newly created and praised Convention method (as used for the drafting of the Human Rights Charter) seems to promise a greater and in fact serious involvement of national parliamentarians in the constitutional decision-making of the Union. This involvement is sufficient, yes even especially appropriate, so it is argued, because the NP should act only where the fundamentals of European integration (and their supposed sovereignty, I would add) are concerned93.

But whatever plan is effectuated, at the end of the day the NPs still face a dilemma: national parliamentary control and the efficiency and already minimal transparency of European procedures contradict each other. The more the rights and instruments of the NP are enhanced, or even a new organ is created, the more the efficiency and transparency of European procedures will be diminished. Especially executive federalism entails an institutional setting in which the national governments are deeply involved in the making and implementation of European laws, thus the simple strengthening of instruments of the NP is not a sufficient solution.

From this assumption an even more fundamental problem follows: It has been said that the features of executive federalism form a coherent system, creating their own institutional dynamic. Since a greater involvement of the NP collides with this very logic, it follows that only a fundamental change of this system could solve the dilemma of NP. But such a change would have to start with decartelizing the interwoven competencies because this is the basis of the system and the starting point for its institutional dynamic. Thus, perhaps only a kind of dual federalism, as known from early American federalism, could soften the logic.

But if the position of NP can be helped only if the structure of interwoven competencies is changed, then the prospects are really bleak. Despite all vigorous debate about the division of competencies in the EU and between EU and member states, such a proposal has never been made and, for various reasons, would be without too much of a chance of success94.

The Option of the EP as controlling parliament


Looking now at the EP through the lens of executive federalism presents a different picture. While the NP are enmeshed in the institutional logic of executive federalism and are hardly able to contribute to the legitimacy of European governance, the EP seems to profit from the institutional setting. This thesis follows from a new approach to the analysis of this parliament. Taking into account the federally shaped institutional frame and comparing the EP to different types of parliaments, this paper will conceptualize the EP as a ‘controlling parliament’, inspired by a comparison with the US Congress95. It is the attempt to think outside the box of European parliamentary systems, which somehow seems to transcend all analyses of parliamentary system in the EU to this point. Instead, this paper dwells on the model of legislatures in non-parliamentary systems.

Reconsidering the EP as parliament in an executive federalism will take two steps. The first step will lay out considerations that lead to the new matrix for the analysis of the EP. The second part will then apply the matrix and examine the powers of the EP, thereby spelling out how it can be understood as controlling parliament.


Drawing a comparative framework for the analysis of the EP
The analysis of the EP in the context of executive federalism is based on two considerations. The first one employs a comparison between the European and the US American constitutional system, concerning the relation between institutions and its consequences for the position of parliaments.

Executive federalism and the system of separated institutions sharing powers


It is an almost proverbial characteristic of the US Constitution to be based on a separation of powers principle96. Yet, it is nearly equally well-known that this is only half of the truth. As the doyen of American political science, Richard E. Neustadt, noted long ago, the American system is rather a system of ‘separated institutions sharing powers’ than a system of separated powers97.

It would be a rather steep uphill battle to argue that the European constitutional system follows a principle of separated powers - quite the opposite98. But instead, the EU can quite precisely be described along Neustadt’s dictum. The European institutions are deeply intertwined when using their powers but accurately separated with respect to their election, their respective source of legitimacy and their personnel: Whereas the EP is based on the peoples of the EU and direct European elections (Art. 190 TEC), the Council is based on national governments and their respective national elections (Art. 203 TEC). The Commission is based on both strands together (Art. 214 TEC)99. The membership in all of these institutions is mutually exclusive. Although of course different in many other respects, in this structure the EU resembles the US Constitution where both Houses of Congress and the President are also based on different sources, elected by individual procedures and personally separated institutions100.

What links this observation to the foregoing analysis is the fact that in the EU this structure is grounded in the system of executive federalism. It is especially the Council as institutional core of this federal system which has a unique and separated procedure of election. It is furthermore the Council’s influence on the appointment of the Commission that impedes most fundamentally a unitary system and a close fusion between Commission and EP101. Hence it is the executive federalism in the EU which entails this system of separated institutions sharing powers.

Turning now to the position of parliaments in such systems, this structure has an immense influence on the inter-institutional position as well as the powers and working methods of Congress in the US system. Especially in comparison to legislatures in unitary systems where the majority party in the parliament forms the government, Congress as parliament in a separated setting has genuinely different features.

This observation leads to a quite simple follow-up question: If this separate setting has such an effect on Congress, what effect has it on the EP and how can it be used for its analysis? To discover, how the EP has to be understood as a parliament in a system of separated institutions, will be the exercise in the rest of this paper. This exercise will be instructed, though, by a broader typology of parliaments which shall be developed now in the second consideration102.

Two analytical types of parliaments as comparative matrixes for the EP


Instigated by the comparison with the US Congress, two contrasting ideal types of parliaments can be described which shall serve as comparative matrix for the EP. These two types of parliaments shall be named as debating parliaments and working parliaments103.

The debating parliament

The debating parliament is what in continental Europe is often perceived as the ideal parliament: it is centered around its plenary which serves as the forum of the nation and draws its importance from mirroring different opinions in society within the parliament. This type is mostly found in parliamentary systems where the majority party in parliament forms the government, where there is, in the words of Walter Bagehot, a fusion of majority party and government. The political opposition uses the plenary of the parliament to attack the steps of the government as well as to lay out its own proposals. To cut it short: debate is the center of parliamentary life. The British House of Commons is the preeminent example104.

The working parliament

The working parliament, on the other side, receives its character and power from being fairly separated from the government and from operating as a counter-weight to it. Not the fusion of majority party and government but the institutional combat between legislature and executive characterizes the system and thereby the legislature. Moreover, an incompatibility rule, which forbids members of the executive from sitting in the legislature, prevents public debates between government and opposition on the floor. It is more the strong and specialized committees and less the floor which functions as the main locus in working parliaments. These committees acquire expertise and power to control the bureaucracy and heavily shape law making. In sum: Working committees are at the heart of parliamentary life here. The US Congress is the classic example of this type of parliament105.
These two types differ remarkably in their use of powers and their organization. They form thus a multi-facetted background to compare the EP with. It should be added and stressed though that these two types are, of course, ideal types, primarily heuristic devices to analyze the EP and to highlight certain features. Even the House of Commons and the US Congress which were mentioned as examples above, are naturally not merely these clear cut models, but are caught here only in a central characteristic.

However, two skeptical questions must arise from these small sketches above. First of all, it might seem as if debating and working parliament are just other terms for parliaments in parliamentary or presidential systems, which might mean that we are using incomparable material for the analysis of the EP. But is it correct to assume an easy equation between parliament model and political system, is a debating parliament necessarily linked to a unitary system and a working parliament conceivable only in a separated system?

I think, this would be too easy an equation. Surely, all parliaments are formed by the political system around them, but not entirely. Two (very brief) examples may demonstrate that every parliament is shaped by different elements: There is first the German parliament, the Bundestag. The German Constitution erects a parliamentary system. But the Bundestatg is surely not a plain debating parliament. Instead, its behavior and organization reflects strong federal elements, especially towards the federal chamber, the Bundesrat. Coping with that the German institutional system (a bit like the EU system) is rather a triangle and the Bundestag has sometimes be called a “debating working parliament” - pointing to its hybrid character106.

Another hybrid is the French parliament as second example. The French political system is, as is well-known, a semi-presidential system, combining a directly elected president with a parliament-based prime minister in a dual executive107. Yet, in a curious way the Assemblée Nationale seems to combine the worst of both worlds, being neither a debating parliament, electing the government and drawing public attention to the political debate between government and opposition, nor a working parliament, combating fiercely and often effectively the executive branch. As a legislature in a semi-presidential system, the French parliament lacks influence on lawmaking as well as on the election of the executive branch.


This leads to a second skeptical question of how to evaluate the two types, thus the question of standards. In the abridged form in which they are presented above, both parliamentary types seem to be both, quite rigid and therefore artificial. But both types can be distinguished and described more precisely along a number of formal and empirical standards. These standards will be explained and used in the following paragraphs, where the powers and functions of the EP are examined in comparison with these two types.
A third type of legislature: the EP as a controlling parliament ?
One more preliminary remark is necessary. In a first glance comparison between the EP and both of these types, it seems that many similarities can be found between the EP and the type of a working parliament. Thus, on this first take, the EP can basically be regarded as a working parliament. Nevertheless, it should already be mentioned here that certain features of it seem to be quite original to the EP. These features justify that we consider a third type, which can be seen as a sub-category of the working parliament. This type shall be named more precisely as a ‘controlling parliament’. As such it employs basically the same instruments as a working parliament (such as the US Congress), but its powers are generally more of a negative, controlling and preventing nature than an autonomously creating one. In that respect the term ‘controlling parliament’ is more appropriate108.

The EP as controlling parliament, or: Why the EU will not be a parliamentary system but the EP already is a strong parliament
Having set the frame, it is now time to analyze the EP directly and in that frame. For that purpose, the EP shall be examined along its different powers or functions. Four of them will be discussed here: the elective, the oversight, the lawmaking as well as the representation function109. Along each of these four we will compare the EP’s use of its powers with the way the two parliamentary types sketched out above use them. Going through one function after another we will spell out the type of a controlling parliament as a distinct sub-category of working parliaments.
The EP and its elective function: a negative competence



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