Jean Monnet Center at NYU School of Law

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After all these obscure suggestions and dark hints, it is time to switch on the light, to become concrete. I will address the different institutions. Now, I cannot do it one by one. If one talks about interinstitutional relations - looking for a shift in the balance - one has to look at at least two of three, sometimes at the full triangle and even the member states at the same time. And of course we may ask at whose expense an improvement in the position of an institution has been made. And there we will discover that this is not a zero sum game, several institutions or all of them may gain from certain changes, reestablishing in a certain way the institutional balance at a higher level.

Let me start off with the European Parliament. Why the European Parliament? Because it is the highest ranking institution according to the Treaty? Because I happen to be part of its staff? Perhaps it is better to say that I agree with the views of most observers who converge in saying that the development of the European Parliament has been the most dynamic of all the institutions over the past 25 years.


It starts with the recognition of budgetary powers due to the pressure of the Dutch Parliament in the early seventies. The European Parliament obtains a say over expenditure, even the last word for non-compulsory expenditure. Its President signs the budget into force and it can reject the budget, a power it has used on three occasions. One might immediately suggest that the Council, the former single budgetary authority, has lost in this movement. But even if this is true, the Council participates as well in the gain in legitimacy for the whole annual budgetary procedure. And the Commission, which was used to deal mainly with one interlocutor? It has now to deal with two, which is certainly more complicated especially if they have conflicting views. But this allows for a strengthening of your position if you find a partner to fight the third participant. The Commission has time and again managed to play this game. (The partner game is of course played by the other two institutions as well.)

The budgetary procedure has not been changed since, at least not at the Treaty level. This is somewhat surprising because there have been plenty of attempts and new interinstitutional agreements have come into existence. During the last IGC we were confronted with a curious situation where the budgetarians of the three institutions had more or less agreed on a reform of the procedure, towards a simpler codecision procedure with normally only one reading. Despite this joint effort the matter was not taken up by the IGC. The budgetarians did not succeed in selling their agreement to the actors in the IGC. This gives food for thought about the limits of the IGC method.


The reinforced legitimacy of the budgetary procedure was further strengthened by the 1979 first direct elections. And it is not surprising that the European Parliament used its powers to the full extent going as far as to reject the first budget after the first direct election. The election by universal suffrage did not in itself change the institutional balance because it was not accompanied by any new powers. But it made the directly elected Parliament more professional, more solid and more ambitious. This happened in a period described as one of stagnation, a period of eurosclerosis. Breaking new ground, the European Parliament - under the leadership of Altiero Spinelli - was able to present its Draft Treaty establishing the European Union. This Draft Treaty together with the Delors White Paper of 1985 for the completion of the single market created the momentum necessary for a decision by a majority of the heads of state and government in Milan to convene the Single Act IGC.


The Single European Act brought for the European Parliament mainly the cooperation and assent procedures. These were certainly milestones. They implied for the first time a serious recognition of the European Parliament as part of the Community legislature, albeit limited to two readings and with a threat of negative action. And there was a recognition of Parliament's role in para-constitutional decisions such as the accession of new members, and in agreements belonging to the area of foreign affairs.

Who lost? At first glance certainly the Council. But it remained the legislator taking the final decision. There was no codecision yet. Reinforced legitimacy serves again as a balancing argument with an addition of parliamentary democracy to the procedure. Not much, but something, a start. And there appeared a new argument: European Parliament's insistence could be used as a justification for a compromise that a member state had to agree to. A justification to be used in the capitals, at home, necessary especially because of the newly created legal bases like Article 100a EEC providing for the adoption of measures by qualified majority. This was a mechanism not much used before 1984, even where the legal base would have made it possible. The European Parliament became part of the scapegoat, the Brussels system, or just Brussels (even if it met in Strasbourg). The additional legal bases providing for decision by qualified majority introduced in order to allow for the adoption of the about 300 measures required to establish the single market certainly also strengthened the Council as an institution. Qualified majority increases the decision making capacity (and speed) of the Council tremendously. A negotiation on a proposal based on qualified majority seems to be in an altogether different Council compared with procedures based on unanimity requirements.

If the Council as an institution is strengthened, who is weakened? Certainly not the Commission or the Parliament, even if the latter is sometimes in difficulties to follow the unusual speed in Council proceedings. Can one suggest the member states are weakened, at least those that might have been inclined to take the veto-power inherent in unanimity to its logical conclusion? I do not think one can approve of such a conclusion. A legal base and the proposal based thereon are part of a political programme which certainly cannot be promoted against a group of member states, or even one member state if it were seen as a concerted attempt to overturn the vital interests of this member state. The solidarity between the member states in the Council would never admit such a result. Nobody, and certainly not the Commission would seriously try. Everybody would know that this would overstretch the rules of the game.

The Commission was certainly on the winning side in the Single Act. It could count on the integrationist majority in the European Parliament as an additional driving force towards achieving the single market. The result is well known.


The Maastricht-IGC had been prepared by Jacques Delors by the introduction of Article 102A EEC clarifying that it needed a Treaty change to create the single currency (and that Article 235 EEC was not sufficient). The Maastricht-IGC was surprised by the impact of the sudden and unexpected German unification. This was a positive element for convening the IGC but it may have overburdened its work. Conscious of the need to go further, it is the Maastricht Treaty itself which provided for the next IGC to take place in 1996.

What is in Maastricht for the European Parliament? First, the so-called codecision procedure in fifteen legal bases. 'So-called' because the Treaty refers to it as the "procedure referred to in Article 189b". The British did not want to hear the term, which made it necessary to delete in consequence the term cooperation procedure (which became the "procedure referred to in Article 189c"). In a technical sense, the then UK government was right: it was not codecision based on equality between Council and Parliament. In cases of real conflict, the Parliament only had a negative power, something which weakens its position. A parliament considers itself the appropriate body to adopt a law, not to vote it down.

Anyway, this was another milestone. And the European Parliament used it well. Never was a text in codecision adopted against the Parliament's wish. And the newly created conciliation procedure at the end of the second reading, designed to find a compromise on remaining conflicts turned out to be - after a short learning process on all sides - a tremendous success. Who lost? Again we look at the Council having to share its legislative powers in albeit restricted areas with the European Parliament. Again we counterbalance with increased legitimacy, parliamentary legitimacy. And we add: improved quality of the legislation. At least this is the shared impression of the partners at the end of the procedure and especially at the end of a successful conciliation.

The Commission can play its game here - as in the budgetary procedure - with different partners. I am not totally convinced that it always handled the game in the most clever way. There is especially one new element setting a limit to its monopoly of initiative and to its control of the text to be approved to the very end. If the Council and the European Parliament in conciliation agree on a text, the Commission may like it or not. It can be finally agreed without the Commission being able to oblige the Council to vote by unanimity (of course, only in cases where the legal basis provides for qualified majority). This unique exception to the Commission's power laid down in Article 189a EC was agreed to by Jacques Delors in the interest of a positive overall result but as well because he thought that the Commission still had the power to withdraw its proposal should the result be really unacceptable. This view, however, is contested at least by the legal service of the Council, arguing that once there is a common position by the Council, the Commission proposal is no longer the basis of the legislative work. There were cases in which the Commissioner present in the conciliation committee clearly did not like the emerging compromise. It is then a question of technical skill and use of personal relations to decide how far and how long the Commissioner will resist the agreement between the delegations of the joint legislative authority. If the Commission overplays its cards it may cause hostile reactions ...

The second major development of Maastricht is the combination between making coincide the term of office of a Commission and of the parliamentary legislature and providing for a vote of confidence for the incoming Commission by the European Parliament.

Making the two terms coincide (or almost) makes it possible for the European Parliament to control the Commission, an element always asked for by the member states. But this is not only control, it is as well a way of legitimizing the Commission as a political body (and not as "appointed bureaucrats", in Margaret Thatcher's terminology). Of course the vote of confidence is crucial for this. The way the European Parliament organized its preparation and the vote itself met first with open resistance from the former Commission president, Jacques Delors, and the governments. Parliament was determined, and eventually everybody accepted hearings of the candidate-commissioners by Parliament's standing committees. The results of these public hearings were sent to the President of Parliament in the form of letters that the committees had agreed in closed meetings. The President of Parliament, Klaus Hänsch, decided to publish the letters which together with the hearings turned the whole procedure until the final vote into a public event, something unknown up to then when a new Commission took office. As a result, a new Commission has to undergo a scrutiny procedure unknown by any of the governments of the Member States.


The Amsterdam Treaty means for the European Parliament, first and foremost, a greatly improved codecision procedure and an extension of its application. The improved procedure establishes codecision on an equal footing with the Council by simple deletion of the so-called "third reading" contained in paragraph 6 of Article 189b EC. Further the procedure is simplified and streamlined and it allows for agreement on a bill becoming law at the end of the first reading if the three institutions agree. The extension of the codecision procedure means widening its application from 15 legal bases now to 38 (and 2 more 5 years after the Treaty's coming into force). Of course, not all the legal bases are of equal importance. But this extension makes it possible to call the codecision procedure "the typical legislative procedure of the European Community". Important areas are still missing, though: agriculture, indirect taxes, trade ...

Another improvement in the Parliament's rights leads us to the Commission. Under the Maastricht Treaty (Article 158 EC) the governments present their candidate for Commission president to the European Parliament for an opinion. The Parliament gives its opinion in the form of a vote on the candidate. Even if it is only an opinion, its political consequences are very clear the moment the opinion is negative, i.e. if the candidate does not obtain the absolute majority of the votes cast. Knowing that at the end of the period leading to the formation of the new Commission, there is the legal obligation to obtain a vote of confidence in Parliament, without which the Commission can not come into office, it is highly unlikely that a president to be could continue after a negative opinion from Parliament. From here it seemed to be only a small step to change the mere opinion into a necessary vote of approval by the Parliament. This is what Amsterdam does.

But there may be implications which could change the whole picture in an unexpected way. Imagine one of the two big European parties (either the PES - Party of European Socialists - or the EPP - European Peoples Party) deciding to put up in its electoral campaign for the 1999 direct election a top candidate common to all the member states, declaring this candidate at the same time their candidate for the Commission presidency. If one party were to do so, the other would be obliged to follow. Technically it is not difficult. The common candidate is either declared by the party and only made known through the campaign and is a candidate for a seat only in his or her member state. Or the candidate finds him/herself on all the national lists where these exist or in a safe constituency. He or she will still be elected only once, in the member state of origin.

The party obtaining a majority (even a relative majority) in the newly elected Parliament will, of course, expect governments to honour the views of the electorate and to present the top candidate as their proposal for Commission president. The party presenting a candidate well known beyond the frontiers of one member state could do more: it could respect the well-known preference of the heads of state and government to be able to present a candidate belonging to the club, i.e. a member or former member of the European Council. The PES would have a choice between at least three former heads of government: Gonzalez, Vranitzky and Amato. At the same time, the party could announce that it would invite its parliamentary group to vote only in favour of their own candidate and negatively on any other and to look for additional support by other groups. The European Council meeting at the end of the German Council presidency in June 1999 would be well advised not to ignore the result of the elections.

If this scenario becomes reality there would be numerous consequences:

-the electoral campaign would be brought alive by a union wide personality contest;

-the future Commission president would be a direct result of public elections, having become a member of the European Parliament first and going directly from there to his new office (the Commission presidents since Gaston Thorn were all former MEP's, but no one came into office from the European Parliament);

-the Commission president would clearly be the candidate of one side of the house against the other; this would not necessarily mean the end of the "great coalition" between the two biggest groups in cooperation or codecision procedures. In the past also the candidate belonged in political terms only to one party and one group in Parliament, and in preparing the vote of confidence this affiliation could be balanced by the other members of the future Commission. Bearing in mind that the normal participation in votes in Parliament is beyond 500, one could even imagine that the necessary threshold for the absolute majority (314 votes) could be obtained without one of the two biggest groups ...

However, it is doubtful if the scenario will become reality, at least for the 1999 elections. Why?

First, because of the relation between the European parties and their national member parties: it is unclear if the interest of the European parties to run a campaign with one candidate, is shared by the member parties. The European parties would gain a profile that the national parties would not yet be ready to admit.

Second, the governments may not like the idea too much. They would see their margin for manoeuvre very restricted with regard to the candidate to be put forward by them for the future Commission president. And they realize that they would have to face a Commission president with a very strong legitimation, emerging from a direct election and with the approval of both the European Council and the European Parliament. This president would (or could) occupy the position of President of Europe, a position so far only envisaged by some governments for somebody chosen by them, i.e. deriving his/her authority solely from Member States (or Council). Instead they would have to calculate with a strong new partner.

Today we do not know if the time is ripe for our scenario in 1999. The decision would have to be made very soon, the campaign is in the early stage of preparation. If not 1999, maybe 2004. The potential exists[2].

Amsterdam does another thing to strengthen the role of the president of the Commission and by this, of the Commission as a whole: the designated president plays a more active role in the forming of the new Commission and obtains the right of "political guidance" over the Commission (Article 163 EC). In the Delors Commissions there was apparently no need for such a measure. Now, with a stronger Commission such a need was felt, even if it does by no means go as far as the German Chancellor's "Richtlinienbefugnis".

These improvements in the Commission's position were balanced (or should I say contradicted?) by certain other factors in the IGC which took the form of outright attacks on the Commission's role:

-arguing that the number of Commissioners, having grown because of enlargements, was already too big to allow its smooth running, France proposed a reduction to between ten and twelve Commissioners; the argument used seemed rather weak coming from a government with always more than 30 members; France's representatives were, on occasions, outspoken enough to announce their wish to reduce the Commission to a secretariat;

-a much more subtle attack came from the German government's side (and there especially from the economic affairs ministry): arguing that in a European Union with up to 26 (or more) member states it would be even more difficult to reach unanimity (an analysis so far shared by everybody), Article 189a EC could not remain unchanged any longer. We remember, Article 189a EC paragraph 1, stipulates that: "Where, in pursuance of this Treaty, the Council acts on a proposal from the Commission, unanimity shall be required for an act constituting an amendment to that proposal ... ". This phrase is nothing other than the counterpart to the monopoly of the right of initiative, a cornerstone in the Commission's institutional role as the guardian of the Treaty and the common interest. The reaction by Commissioner Oreja (next to him sat Michel Petite) was the clearest in the whole IGC: if this proposal were to be accepted, he would recommend to his fellow commissioners to resign immediately. A number of representatives of different member states (mainly the smaller ones) understood immediately, that the Commission in its role as defender of the common interest was very often also the defender of their interests. The German proposal came back various times as a ritual. But it seemed to be dead. In any case it did not get into Article 189a EC. (It appears, that in exchange the Commission offered the German government that it would be very forthcoming in its future proposals to revise the Community staff regulations, an area where different German ministries - finance and economics - have at various times shown their interest to deal a blow to the independence of the European civil service[3].)

There was a question, however, as to whether it did not get - without being much noticed - into Article 189b EC in its revised form. I have already mentioned that one of the improvements of the codecision procedure was the possibility to conclude a legislative procedure at the end of the first reading. Already today, about 10 % of the codecision procedures see an agreement between Parliament and Council at the moment of Parliament's first reading (still called "opinion") or at the time of Council's "common position". Count on the wish of the partners, the two branches of the legislative authority, to avoid the trouble of second readings and even, maybe, conciliations. Count on people's normal and positive laziness. They will do a lot to achieve an agreement already in the first reading. So the new challenge for the institutions is to increase the percentage of agreements in first reading. This is indeed very reasonable because it will improve the quality of work in first reading considerably, leaving the second reading and even more conciliation, for the real remaining problems, hoping that there will be only a few.

What does the new Article 189b EC, paragraph 1, say?

"... The Council, acting by a qualified majority, after obtaining the opinion of the European Parliament,

-if it approves all the amendments contained in the European Parliament's opinion, may adopt the proposed act thus amended;

-if the European Parliament does not propose any amendments, may adopt the proposed act; ... "

The latter indent does not pose a problem because it deals with the case in which a Commission proposal is adopted without any changes, which happens.

The first indent is interesting because it differs from the wording of an adoption at the end of the second reading in paragraph 3:

"... If ... the Council, acting by a qualified majority, approves all the amendments of the European Parliament, the act in question shall be deemed to have been adopted in the form of the common position thus amended; however, the Council shall act unanimously on the amendments on which the Commission has delivered a negative opinion ... "

The latter part of the quote missing for the conclusion at the end of first reading, some thought that the Commission had lost its possibility to force the Council to unanimity in cases of its disapproval. That would have meant that the German initiative would have got its way at least in the first reading of what I called "the typical legislative procedure of the European Community" with all that that implies.

Lawyers hesitated only a moment. The converging view said: no. The latter quote concerning the situation at the end of second reading is only a repetition of the general principle contained in Article 189a EC. It is unnecessary but: "quod abundat non viciat". The exception provided for in Article 189a EC itself only covers the conciliation phase, not the first reading in which the general principle applies.

A different result would not seem logical. The Commission would lose control over the text in the first reading and conciliation while keeping it in the second reading.

So much for the legal side. The Commission maintains its control of the text emerging out of the first reading in the Parliament. It is only consequent that representatives of the Commission in the preparation of the coming into force of the Treaty insist on the Commission's right to revise its proposal after Parliament's opinion, taking up Parliament's amendments or not.

But consider the following scenario. On the basis of the initial proposal of the Commission, intense contacts are established between representatives of the Parliament, the rapporteur, the chair of the committee responsible etc. with people bearing responsibility in the Council, the president in office, the permanent representative or his or her deputy, the chair of the working group, with the Commission's representative more or less involved. The rapporteur of the Parliament takes the trouble to talk to one or two national ministers known to be difficult. Imagine that the representatives of the Parliament and of the Council agree on the necessary amendments to the Commission proposal and that the Parliament adopts just these amendments knowing that the Council would be prepared to take these on board by a qualified majority. And now imagine the Commission revising its own proposal in a different way from Parliament's vote, obliging the Council to find unanimity if it wants to stick to the previously agreed position. The answer is simple. The Commission would become extremely unpopular with both branches of the legislative authority.

We see that the Commission would be well advised - in its own interest - not to behave in this way, or at least not too often. Adapting to the reality of the situation may reduce the Commission's role somewhat but it is not as bad as acquiring the status of a secretariat!

With regard to the Council, the tendency continues: it has now to accept the Parliament as a partner on an equal footing in codecision in a vastly increased area. In exchange, there is the addition of full parliamentary legitimation for these legislative procedures.

The one big example strengthening the Council as an institution we have seen in the Single Act, has not been followed by Amsterdam: the conversion from unanimity in the legal basis to qualified majority. Only the multiannual framework research programme has come this way, some other fifty legal bases in the EC Treaty remain under unanimity provisions. This is the most important shortcoming of Amsterdam.

[2]Joseph Weiler used to tease me that I seemed to be the only one considering this scenario. The change contained in Amsterdam - from EP opinion to approval - seems to make it somewhat popular, see Agence Europe, no. 7225 of May 20, 1998 and VWD Europa, same date, reporting on the presentation by the 'Friedrich Ebert Stiftung' working group on European integration (European Elections 1999: The European Parties should nominate their candidates for European Commission President) and a parallel initiative by Jacques Delors' European orientation committee "Our Europe".

[3]This started as a rumour. It became evident when a reflection document by a member of the staff of the Commission's Directorate General for Personnel was made public. It appeared for some time on the Intranet: http:\\ before being withdrawn from there. It caused an important strike movement. The industrial conflict remains unsettled.

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