The legislative procedures for creating laws. (“Legislative power”.

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Last updated: September 11, 2019

The relative power of the Council of Ministers and the European Parliament (EP) in legislative decision-making in the European Union (EU) has increased significantly over the last few decades. However, a number of factors must be taken into consideration when assessing the balance of power between these two actors, and more importantly ascertaining which institution is in control. One such factor is the levels of resources that both respective EU institution possess that allow them to exert influence on each other and on the contents of legislation. What we aim to highlight in this essay is that the relative power the two institutions has shifted over the past few decades from the Council of Ministers being in firm control to a more equal footing and whereby the EP could even be viewed to be in control in some circumstances such as during informal negotiations.   The European Parliament (EP) and Council of Ministers are the first and third of the European Union (EU) seven institutions respectively, as listed in the Treaty on European Union (EUR-Lex, accessed 11/12/2017) Together they form the bicameral legislature of the EU and share the EU’s legislative authority. In recent years, the relationship and relative power of these two institutions have developed, resulting in the creation of various legislative procedures for creating laws.

(“Legislative power”. European Parliament.” Accessed 11/12/2017). Prior to the introduction of the Ordinary Legislative Procedure in Article 294 in the Treaty of Lisbon, which requires both the European Parliament and the Council of Ministers to consent to a legislation before It is adopted into law (“The Codecision Procedure”. Europa (web portal). accessed 11/12/2017), the avis facultatif maxim was used to make laws, the basic principle being that “The Commission proposes, and the Council disposes” therefore the Council of Minister was in control during this period when looking at the relative power of both institutions. (News highlight, co decision.

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Accessed 11/12/2017).   In other to better understand the relative power of the Council and the European Union, it is prudent to have an idea of who or what both institutions are representing. Even in the early days of the two institutions history, The Council of Ministers and The European Parliament served to represent different entities. The European Parliament represent the citizens across the EU, since 1979 the EP has been elected every 5 years by universal suffrage (Maier et al, 2013, p 199). The Council of Ministers on the other hand represents the executive governments of the EU member states.

Within the general idea of citizen representation in regard to the EP, the institution has undergone an extraordinary development. The writers of the treaty that established the Common Assembly of the European Coal and Steele Community (ECSC), the institution that would grow into the modern day European Parliament, envisioned in article 20 of the ESCS treaty, a consultative assembly that would “consist of representatives of the peoples of the States brought together in the Community” Today the Treaty on the European Union now reads: “The European Parliament shall be composed of the representatives of the Union’s citizens” (Article 14(2) TEU). In this regard it is quite clear to see that there has been a significant change, while a representative of the ESCS consultative assembly was expected to represent only the citizens of his or her respective member states, today, a member of the European Parliament (MEP) is expected to represent the citizens of the EU as a whole. The different role attributed to both institution in regard to representation are highlighted in the perception of member states representative in the Council and members of the European parliament (MEP). Despite the partisan and ideological differences within and between the important decision-making organs in the EU, MEPs and Council officials both highlighted the significance of different representational roles for their work.

(Mühlböck, 2012, p 189).  Over the last couple of years, the relationship between the EP and the Council of Ministers has changed significantly. The idea of a federal style system propounded during the negotiations that preceded the establishment of the European Coal and Steele Community did little to precipitate the development of the European Parliament and the Council of Ministers into a bicameral legislature, the process took several decades and even longer for the legislature to be recognized.

(Kreppel, 2011, 167-179). This development has predominantly been characterized by the considerable increase in the European Parliament legislative power (Corbett et al. 2011, 232-271) at the expense of the Council (which was firmly in control in terms of relative power between the two institutions prior to the introduction of Co Decision and the ordinary legislative procedures) and the European Commission, as a result of various treaties in particular the treaty of Lisbon which replaced the Co Decision method with the Ordinary Legislative Process, such increase in the power and influence exerted by the EP highlights the extent at which it has come, from being limited to giving its non-binding opinion or excluded from the legislative process altogether, to participating equally with the Council in the legislative process.

 The ordinary legislative procedure, formally referred to as the Co decision is the main legislative procedure for the European Union by which directives and regulations are adopted. The procedure which is sometime referred to as the Community Method (Craig and de Búrca, 2015, p 145) was introduced by the Maastricht Treaty of 1992 and expanded in 1997 by the treaty of Amsterdam and article 294 of the Lisbon treaty signed in 2007. It requires both the European Parliament and the Council of European Union to agree on a Commission proposal including on any amendments, before it can become law.  The ordinary legislative procedure as specified in the Treaty of Lisbon, provides for the possibility of two parliamentary readings of a legislative proposal. In the event of a protracted disagreement between the two actors, a Conciliation Committee is set up Composed of equal representatives of the Council and Parliament, with a view to drawing up a joint text on the basis of the two positions. The committee must agree a common text within six weeks which would need to be approved in a third reading by both the Council and EP in other for the legislative proposal to be adopted.

 Yet even prior to the introduction of new treaties that shifted the power dynamic between the council and the EP to a more equal footing, the European Parliament has strategically used its competencies in some areas to press for more competencies in other areas in relation to the Council of Ministers (Héritier, 2007, p 229-232). The interaction between the two institutions has been shaped by this perpetual battle for political influence. When for example conflict arises between the Council and the EP, MEPS tend to defend “their” institution thus exacerbating the ongoing struggle between the two actors which has left its mark on the stakeholders within both body, in particular the EP, whose MEPs still perceive the relationship with the council as an enduring struggle, the EP is tend to be displeased at the formal grants of power negotiated by member states governments.

(Héritier, 2007, p 120). Similarly, officials in the Council often view the European Parliament as an inconvience if deals negotiated carefully by member states have to be redone as a result of intervention by the EP, in this regard, members of the Council of Ministers and the European parliament view each other as opponents (Mühlböck 2012, 190).   In contrast to scholars like Garrett, 1995 and Tsebelis, 1997, other researchers such as Scully, 1997; and Crombez, 2000 have argued that co-decision increased Parliament’s power, bringing the institution to equal footing with the Council of Ministers. In addition, a review of the legislative procedures currently used in the EU was carried out recently, findings from the review suggest that different interpretation of the institutions exist, each of which can impact the relative power of the Council and the European Parliament. (Selck and Steunenberg, 2004: 25-46). For instance, under the ordinary legislative procedure, the European Commission is responsible for introducing a legislation, however it is open to interpretation what happens in the Conciliation Committee: Does the EP make a proposal to the Council regarding the content of the final legislation to be adopted or does the Council make the proposal. This matter, because the actor would be able to leave its mark on the legislative proposal just before approval, thus handing it a distinct advantage with respect to the final content of the legislation.

As such when looking at the relative power of both actors, that institution would be deemed to be in control.  As highlighted above the EP’s power has increased significantly over subsequent EU treaties bring its power on par with that of the Council with the introduction of the ordinary legislative procedure. The relative power of both of these two institutions has been a central pillar of many debates on EU law making. For example, one of the ongoing discourse among scholars and researchers seeking to understand legislative politics is to examine the constraints and opportunities provided by procedural rules. The analysis focuses on the idea that these formal institutions play a leading role in shaping actors behavior (Garrett and Tsebelis, 2001, p.356). What is interesting to note is that scholars have reached completely dissimilar conclusions on the impact of sequential Treaty revisions on the relative power of these two institutions. The differences in their conclusions however could be down to the indeterminacy of the formal rules, which leaves the rules open to interpretation.

Some researchers for example, have argued that the co-decision procedure introduced in the treaty of Maastricht actually reduced the power of the European Parliament as opposed to enhancing it, compared with the cooperation procedure it replaced. The co-operation procedure, otherwise known as the article 252 procedure was introduced by the Single European act (Craig, 2003: p 143) . Under the procedure, the Council of Ministers, with the support of the European Parliament can adopt a legislation proposed by the European Commission through a qualified majority. However, the Council could overrule a rejection of a proposed law by the European Parliament by adopting the proposed law unanimously. This highlight the fact that prior to co-decision, the Council of Ministers was firlmy in control with respect to relative power between the two institutions. (Article 252(c) of the pre-Lisbon Treaty establishing the European Community.) Scholars such as Hage & Kaeding, 2007 also reached different conclusions in their analysis when informal institutions are included in respect to the balance of power between the Council and the EP. In contrast to formal institutions which are created, communicated and enforced through channels of generally accepted official organizations – Informal institutions are created, communicated, and enforced by the actors themselves (Knight, 1992).

Beside empowering the EP, the ordinary legislative procedure a somewhat cumbrous formal decision-making process, which consist of up to three readings by both the Europian Parliament and the Council of Ministers. As a result, the legislative process was considerably elongated (Golub, 1999, p 733-764). To countervail these propensities, the Council and the EP along with the European Commission began to engage in informal discussion before and between formal readings of legislations (Farrell & Héritier, 2003; Shackleton & Raunio, 2003). While the so called trilogue negotiations improved the efficacy of decision making in the EU as well as the organization’s output legitimacy, the obscure nature of these processes and the lopsided role played by the few actors directly involved raises questions as to which of the two institutions, the EP or the Council is in control at these negotiations in addition, such informal negotiations undermines the original goal of fostering input legitimacy in the EU.     Even so evidence points to the EP being more in control in these informal negotiations. Therefore, there is incentives for the European Parliament not least in the form of power dynamic shifting in its favor but also in terms of policy gains to engage in these informal negotiations which in retrospect can outweigh the losses occurred with respect to output legitimacy. Frank M.

Häge and Michael Kaeding, 2007 have argued that the EP is incentivized to engage in informal negotiations since it is better able to extract concessions from the Council of Ministers in this stage as opposed to the Conciliation Committee. This is the case not because the informal institution of trilogue negotiation is inherently better per se, but because it requires less resources in terms of time and personnel (Farrell & Héritier, 2003; Shackleton & Raunio, 2003), moreover, the Council of Ministers prefers to avoid Conciliation.  Looking at things from an efficiency angle, an early agreement benefits both the EP and the Council, however the Council is more incentivized compared with the EP to reach as early an agreement as possible.

Provided of cause that the salience of the issue in discussion outweighs its expected cost of engaging in conciliation, the Council will agree to participate in informal negotiation and make policy concessions rather than participate in a conciliation committee. The European Parliament on the other hand has no special incentive to favor conciliation committee over informal negotiations, rather the EP would prefer he trilogue negotiations as it carries more influence there.  To test this theory and its related implications, Frank M. Häge and Michael Kaeding, 2007 carried out a test comparing the outcome of two legislative decision-making process. The EP’s influence was compared over two legislative proposals relating to transport, these proposals were matched on important characteristics so as to keep other explanatory factors constant. The first case was in relation to directive on the necessary conditions for implementation of social legislation on road transport issues, this was agreed in the conciliation committee, he second case has to do with driving license which was formally adopted by the Council at a second reading after informal negotiations occurred leading to an agreement with the EP. Häge and Kaeding used amendment adoption rate as a measure of the European Parliament relative power at the negotiation table in contrast to the Council, They concluded that the evidence from the two case studies were consistent with the theortical argument that the EP enjoys a distinctive advantage in trialogue negotiations, thus it  can be considered to be in control in relation to relative powers between the EP and the Council.

   In conclusion, the relative power of the EP has increased exponentially over the last couple of decades due to the introduction of new treaties in particular the Treaty of Lisbon and the introduction of the Co decision and the ordinary legislative procedure, prior to these treaties arguments can be made for the Council of Ministers however in contemporary period the answer as to which of the two institution is in control is not clear cut, on one hand the ordinary legislative procedure suggest that both institutions are equal in power relativity due to the fact that the vast majority of legislations in the EU cannot be adopted without the consent of both institutions however on the other hand it could be argued that the EP is in control as they appear to have a distinctive advantage in forcing policy concessions from the Council during informal negotiations

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