Monday 27 September 2010

EU politics and law: “Community method” dead and reburied – What instead?

Almost two decades ago, from 1 November 1993, the Treaty on European Union (TEU; Maastricht Treaty, 1992) established the European Union (EU) as the overall term and as the framework for intergovernmental second pillar foreign and security policy, as well as third pillar justice and home affairs.

However, the European Community (EC) carried on the activities of the European Economic Community (EEC), and these manifold policy areas were lumped together under the so called first pillar.

Only the 2007 Treaty of Lisbon sent the European Community to kingdom come, when the reform treaty entered into force on 1 December 2009. The pillar structure was formally abolished, although many intergovernmental traits remain, under two distinct Treaties.

Therefore, the easy part was the Coroner’s renewed verdict on the death of the EC and ordering the reburial, when leading EU politicians had recently exhumed the body of the “Community method”, which had become a historical term. This was done in the blog post “EU: Community method RIP – or a stake through its heart!” (25 September 2010), because the first pronouncement had not been heeded.

Now the more difficult part remains. We need to settle the succession and we need a Baptist for the newborn.

At present, we have only the European Union, as in the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). What should we call the process when the Commission proposes and the Council and the European Parliament jointly dispose?

Officially, we have the “ordinary legislative procedure”, which can be boiled down to “EU legislation” or “EU lawmaking” in everyday speech.

But the scope of decisions and processes is wider (formally: regulations, directives, decisions, recommendations and opinions; Article 288 TFEU). There are budgetary issues and a host of administrative matters, such as plans, reports, duties to inform, comitology procedures and scrutiny processes.

There is need for a wider, more political term.

The directly elected European Parliament represents the citizens of the European Union and the Council represents the (special interests of the) member states. When the EP and the Council decide on an equal basis, on a proposal from the Commission (duty bound to promote the general interest), they act as a first chamber and a second chamber of representatives in a federal system.

Should we stretch the term “parliamentary” to encompass at least this part of the EU political system?

The president of the Commission is, in practice, appointed by the European Council, although taking into account the elections to the European Parliament. Formally, the candidate is elected by the European Parliament, even if I consider the term “elected” in Article 17(7) TEU to be a misnomer for the right of refusal.

The other members of the Commission are, effectively, nominated by the governments of the member states, although by common accord with the president-elect. The Commission as a body needs the consent of the EP and it can be deposed by a vote of censure.

In other words, there are elements of normal parliamentary political accountability in play, but not rule by a simple majority in Parliament.

Where the Commission makes formal proposals, it is difficult for the EP and the Council to vote them down or amend them, if the Commission does not change its opinion. (In intergovernmental matters the role of the Commission varies from recommendations to almost non-existent.)

Does this mean that we have to discard the “parliamentary method” as well? If the EU is ‘sui generis’ enough to escape existing terms in this respect as well, which concept should we adopt to replace the outdated “Community method”?

Are you going to be our Baptist? How would you name the baby?

Your help is needed.

Ralf Grahn

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