The Empowered European Parliament

The Empowered European Parliament Regional Integration and the EU final exam Kåre Toft-Jensen CPR: XXXXXX - XXXX International Business and Politics Copenhagen Business School 6 th June 2014 Word-count: 3462 STU-count: 22464 Question 2: Describe how the role of the European Parliament in the EU decision-making process has changed in the last 20+ years, and discuss which actors were contributing most to this development. What are the implications for democratic accountability of the EU? Table of Contents 1.0 Introduction 1 2.0 Theory 2 3.0 The European Parliament s legislative development 4 4.0 Legitimacy and the European Parliament 7 5.0 Conclusion 10 6.0 List of References 11

1.0 Introduction One of the most significant developments in the European Union (EU) the last two decades is the empowerment of the European Parliament (EP). The EP has gone from being a powerless talk shop to being the co-legislator together with the Council of the European Union (Council) in eighty-five policy areas (Cini & Borragàn, 2013). Today the EP remains the most powerful supranational parliamentary assembly in the world and is often seen as the legislative body that provides legitimacy to the EU (Rittberger 2005). This paper aims to explain why we have seen an empowerment of the European Parliament and how it has affected the legitimacy of the legislative process: How can we explain the legislative empowerment of the European Parliament since the Maastricht Treaty and has the empowerment affected the legitimacy of the decision-making process? The paper concludes that the EP s rule interpretation of treaty articles and the EP s ability to successfully utilize informal procedures have been the decisive factors. Furthermore, the paper concludes that the empowerment has slightly improved the legitimacy of the legislative process. To reach this conclusion, the paper will firstly provide the theoretical framework consisting of rational choice institutionalism, historical institutionalism and Beetham s theory of legitimacy. Secondly, a combination of rational choice institutionalism and historical institutionalism will be applied to explain why we have seen an empowerment of the European Parliament. Finally, Beetham s three conditions of legitimacy will be applied as benchmarks to investigate if the increased influence of the EP has increased the legitimacy of the decision-making process in the EU. 1 P a g e

2.0 Theory 2.1 Historical and Rational Choice Institutionalism Rational Choice Institutionalism: In an EU perspective, rational choice institutionalism (RCI) generally seeks to explain the changes in relative power between institutions (Cini & Borragàn, 2013: 91). The theory is built upon several assumptions. Firstly, actors are assumed to act rationally. Secondly, the actors form their preferences on the basis of their interest and act strategically according to these preferences to maximize their utility (Pollack, 2006). Finally, there is perfect information in-between actors and perfect information about outcomes (Rittberger 2005). Institutions are formed to be common intervening grounds, where formal rules restrict actor behaviour. If the rules of the institutions change, the preferences of the actors will remain the same, but the way to pursue them will change (Rosamund 2000). RCI thereby has a functionalistic explanation as to why institutions existent. Traditionally, within RCI the principal-agent model has been applied to explain the delegation of power from the member-states (MS) to the supranational institutions in EU. However, the EP is not a typical agent of the MS. The members of the EP are appointed by the national parties, not by the national governments. Besides, some scholars argue that MS motivation to delegate legislative power to the EP is based on a desire to enhance the legitimacy of the decision-making process, rather than on the basis of functional motivations such as transaction cost and creditably commitments (Rittberger 2005, Pollack 2003). Instead of the principal-agent model approach, the concept of incomplete contracts will be applied to explain the empowerment of the EP. Historical Institutionalism: While RCI has a functionalistic explanation of institutions, historical Institutionalism (HI) has a more broad understanding of institutions. Generally, HI defines institutions as routines, rules, norms and procedures, both formal and informal, that establish the framework for an actor s behaviour in the process of obtaining their preferences (Pollack, 2008). Most of the research within the HI has focused on the long-term effects of institutions. HI argues, that institutional choices made in the past can lock-in future decisions and thereby constrain the actors (Pollack, 2008). Institutions are complicated to change because of the uncertainty and cost involved in adapting to new ones. All this leads to a path dependency where earlier choices, institutional or political will survive even though they are not optimal (Pierson, 2004).). 2 P a g e

Intersection between historical and rational choice institutionalism: I argue that to fully understand the complexity of the empowerment of the EP one must analyse the process from both a RCI and HI perspective. Even though there are conflicting differences between the two theories, especially with regards to the theories understanding of institutions and the level of information among the actors, they can be viewed as complementing rather than contradictory. RCI and HI share the same assumptions about the rational actors that act in order to maximize their own self-interest according to their preferences (Katznelzon & Weingast 2007). For that reason, Pollack sees historical institutionalism as a particular variant of rational-choice theory emphasizing the importance of time and [ ] path-dependence in the study of politics (Pollack 2008: 4). A combination of the theories enables me to understand the importance of individual actors in the empowering process and at the same time understand the importance of already established institutions which can make the actors prisoners of past choices. Another benefit of combining the theories is that it widens the scope of institutions, to also consist of informal norms and procedures. RCI is often criticized for their assumption about full information and the actor s unlimited ability to calculate advantages and disadvantages about different outcomes (Pollack 2005). For that reason, the assumption about full information is modified in this paper, so the actors act on the basis of imperfect information. This is in line with HI who argues, that actors are not always able to predict how an institutional change can affect them in the future. The modification of full information enables me to apply the concept of incomplete contracts to the analysis. Formal procedures established in the treaties can be viewed as incomplete contracts, where the actors do their own interpretation of the procedures within the frames of the treaties. Contract can be incomplete for two reasons; Due to cognitive limitations or for strategic reasons. 2.2 Legitimacy The legitimacy of the decision-making process in the EU became a major debate among scholar within the field of EU studies, after the Maastricht Treaty delegated remarkable power from the MS to the EU (Cini & Borragàn, 2013). The English theorist David Beetham has investigated which criteria that are required before an authority can be characterized as legitimate. His theory is built upon the theoretical basis of Weber s notion of ideal types of authorities, yet Beetham rejects Weber s argument that legitimacy is nothing more than the belief in it (Beetham 1991: 11). According to 3 P a g e

Beetham three conditions needs to be fulfilled before an authority can be characterized as legitimate (Beetham 1991: 15-16); 1. Power must be exercised according to established rules, whether these are embodied in formal legal codes or in informal conventions. 2. These rules must be justified in terms of shared beliefs of the government and the governed. 3. Legitimacy must be demonstrated by an expression of consent on the part of the governed. In this paper Beetham s three conditions of legitimacy will be applied to analyse if the empowerment of the EP has made the decision-making process in EU more legitimate. The three conditions will functions as benchmarks. Empirical evidence of legislation, voter turn-out and public opinion will be investigated in relation to these benchmarks. 3.0 The European Parliament s legislative development Having clarified the theoretical framework of this paper, I will now analyse how we can explain the empowerment of the EP by applying RCI and HI. The analysis will focus on the co-decision procedure introduced with Maastricht, extended with the Amsterdam Treaty and later renamed ordinary legislative procedure with the Lisbon Treaty. The EP will be treated as one unitary actor. The focus of this paper will be on the empowerment of the Parliament as a legislative actor and not on the complex internal workings and different views among the political parties within the Parliament. Given the limited remit, the EP s budgetary powers and scrutiny powers will not be a part of the analysis. 3.1 The Maastricht Treaty an incomplete contract The Maastricht Treaty introduced the co-decision procedure I. Summarized, the procedure was similar to the cooperation procedure establish with the European Single Act. However, this procedure added a conciliation committee after second reading. If the EP and Council disagreed after two readings, representatives from the EP and the Council would meet up to resolve their differences (Hix 2013). If negotiations at the conciliation committee broke down, the council could then re-establish its common position from the first reading and the common position would be adopted unless an ab- 4 P a g e

solute majority of the EP rejected it. The Council thereby had the power to make a take-it-or-leaveit offer, without the EP adding any further amendments (Hix 2003). The EP was aware of this power and to maximize their own influence in the legislative process they updated their rules of procedures. Rule 78 stated that if the Council would re-establish their common position after the conciliation committee, the Parliament would automatically reject the proposed legislation (Farrel & Héritier 2005). From a rational perspective the best strategy for the Council was still to break down the conciliation committee negotiations and adopt their position from the first readings. In 1994 with a directive about open provision in voice telephony the Council tried this strategy. The proposal was rejected by a majority of the EP, which showed that rule 78 was a credible threat (Hix 2002). The Council never tried this strategy again and accepted that negotiation with the EP was necessary within the legislative areas of co-decision I (Farrel & Héritier 2005). This was a major empowerment of the EP, since the rule interpretation forced the MS to accept new de facto informal rules of operation. According to this assignment s theoretical scope, the co-decision introduced with the Maastricht Treaty is an example of an incomplete contract. The implementation of rule 78 in the rules of procedures is clear evidence of what RCI characterises as rule interpretation. The EP made an interpretation of the formal rules stated in the treaty, which strategically increased their legislative power. Due to imperfect information, the MS did not predict the EP s behaviour when they establish the codecision procedure and became locked-in by past choices. This is in line with HI which argues that past institutional choices can constrain actors behaviour (Pierson 2004). 3.2 The Amsterdam Treaty formalising informal procedures With the Council s acceptance of the EP as a co-legislator within the areas of the co-decision procedure, informal meetings called trialogues became the normal procedure of operating in the decision-making process (Farrel & Héritier 2005). These informal procedures and the direct negotiations between the legislative bodies enabled the EP to bundle legislation (Rittberger 2005). In other words, the EP could bargain by blocking or slowing down legislation within the frames of codecision to get influence in other areas. As express by the British MEP Richard Corbett; 5 P a g e

I warn the Council that [ ] if the working group continues to be so restrictive on Parliament s right to intervene, then there will be no agreement and we will [ ] co-decision procedure after co-decision procedure go all the way to conciliation (Farrel & Héritier 2005; 587) They could take advantage of this, because the Council was more vulnerable if legislation was blocked. The Council members could more easily than MEPs be blamed in the national parliaments and press, and the six month presidency system of the Council created a pressure for legislation to be passed within that timeframe The EP took advantages of that and delayed legislation in order to achieve more legislative power. (Farrel & Héritier 2005). This is in line with RCI explanation of actor behaviour. The EP negotiated and bargained to maximize their institutional competences. An example of the EP influence beyond the co-decision was the negotiations at the intergovernmental conference (IGC) before the Amsterdam Treaty. Even though the EP only had a consultation role in the IGC, they proposed a reform of the co-decision procedure, so de facto informal procedure of operating would become institutionalised. In addition, they proposed that the Council s power to reestablish its common position after the conciliation committee was removed (Hix 2002). The MS accepted the proposals. They were willing to do this for several reasons. Firstly, by institutionalising de facto informal procedures making them formal would not in fact change the relative power between the EP and Council. Secondly, by formally institutionalising the informal procedures the legislative process would be simplified. Finally, this was a way for the MS to response to the demand for a more legitimate decision-making process (Hix 2002). The negotiations of the new co-decision II with the Amsterdam Treaty can be argued to have a path dependency character, since it was based on revision of the previous co-decision I. As HI argues, new institutions inherit institutional choices made in the past (Pierson 2004). The Amsterdam Treaty was a remarkable empowerment of the EP. The co-decision procedure was extended to 15 existing and 8 new treaty articles and the Council s take-it-or-leave-it power was formally removed (Pollack 2003). 3.3 Lisbon Treaty a desire to improve the legitimacy While the Maastricht Treaty and Amsterdam Treaty increased the legislative power of the EP significantly, the Lisbon Treaty did not majorly empower the EP in the legislative process (Hix 2013). Nevertheless, the co-decision was renamed ordinary legislative procedure (OLP) and extended to 85 6 P a g e

treaty articles, including important areas such as agriculture and fisheries and common commercial policy (Witte 2010). This extension of the co-decision procedure can be explained by the national governments response to the demand for an increase in the legitimacy of the legislative process (Cini & Borragàn, 2013). By giving the only direct elected legislative body in the decision-making process a greater legislative influence, the national government had high hopes that the legitimacy would increase (Witte 2010). 3.4 Sub-conclusion From a RCI and HI perspective, we can explain the legislative empowerment of the European Parliament, by looking at EP s rule interpretation of the Maastricht Treaty and the establishment of informal institutions that enabled it to bargain and negotiate with the Council in order to achieve an increased legislative power. In addition the co-decision procedure can be characterised as an incomplete contract. Due to imperfect information, the MS could not predict the EP s behaviour when they established the co-decision procedure and became locked-in by past institutional choices. Furthermore, the analysis argues that new institutions inherit and are built upon previous, as seen with the Amsterdam Treaty. The most influential actor contributing to this development has been the EP itself. Trough rule interpretation and bargaining they have maximized their preferences of more legislative power. The MS have also contributed to the empowerment by delegating power from the Council to the EP. The MS have been motivated and forced to the delegation, due to past institutional choices and because of a desire to enhance the legitimacy of the decision-making process in EU.. 4.0 Legitimacy and the European Parliament Having determined that the member-states desire to enhance the legitimacy was an important factor of the empowerment, I will now investigate if the empowerment of the EP, in fact have increased the legitimacy of the legislative process. 4.1 Power exercised according to established rules According to Beetham first condition of legitimacy, power must be exercised according to established rules, whether these are embodied in formal legal codes or in informal conventions. To ensure that power is exercised according to established rules, the decision-making process must be transparent. As elaborated earlier in this paper, informal meetings between Council and EP representatives take place to resolve differences early in the legislative process. The division between first, second and third readings in the period 1994-2011 is illustrated on the next page; 7 P a g e

The trend is clear, a significant increase in first reading agreements and a noteworthy fall in second and third reading agreements since Maastricht. The high number of first reading agreements indicates that many informal meetings and behind-the-scene deals take place, where the agenda is not accessible for the public (Hix 2013). Furthermore, first reading agreements are resulting in only one full plenary debate. This compromises the transparency. On the basis of this, the empowerment of the EP has not increased the transparency of the legislative process, in fact the opposition has occurred. 4.2 Shared belief between EP and Citizens According to Beetham s second condition of legitimacy, established rules must be justified in terms of shared belief of the government and the governed. The EP is the only directly elected legislative actor. The European citizens can through EP-elections vote in favour of their ideological views and common beliefs. The members of the Council are, on the other hand, appointed by the national governments and thereby not directly elected by the European citizens (Cini & Borragàn, 2013). Furthermore, public opinion studies from 1994 2011 shows that the European citizens have a higher trust in the EP than the Council and feel that the EP is more reliable in making decisions that are in the interest of them (Eurobarometer 1997, Eurobarometer 2012). Since the EP represents a stronger shared belief than the council, the relative empowerment of the EP vis-à-vis the council has increased the legitimacy of the decision process according to Beetham s second parameter of legitimacy. 8 P a g e

4.3 Legitimacy as an expression of consent According to Beetham s third condition, legitimacy must be demonstrated by an expression of consent on the part of the governed. One way for the citizens to express consent is through the act of voting (Heywood 2013: 86). By investigating voter-turnout at EP-election since 1979, we see a clear trend; at each election there has been a declining turnout. In 1994, two years after the Maastricht treaty, the voter turnout was at 56.67 %. Five years after in 1999, it felt to 49.51 %. At the EPelections in 2004 and 2009 the turn-out dropped to 45.47 % and 43 %. The recent polls from the EPelection this year indicate that the turnout will stagnate at 43 % (European Electronic Database 2014). By examine the voter-turnout at EP elections, it is clear that the empowerment of the EP, has in fact not led to an increase in consent from the European citizens through the act of voting. However, as already mentioned the EP is the only directly elected legislative actor where the citizens can directly give their consent. Before co-decision was implemented the citizens had no possibility to express directly consent to the decision-making actors in the legislative process. Seen from that perspective, the relative power increase of the EP vis-à-vis the council in the legislative process, has actually to some extent increased the legitimacy according to Beetham s third condition of legitimacy. 4.3 Sub-conclusion The empowerment of the EP, the only directly democratic elected legislative body, has affected the legitimacy of the legislative process in EU in a positively way. European citizens now have the opportunity to give their consent directly, through the act of voting, to a democratic legislative actor with real power. This was not the case before the empowerment, where the EP was nothing more than a consulting assembly. Additionally, the European citizens now have the opportunity to elect members of an influential legislative body that potentially share their beliefs. However, decreasing voter turnout at EP-elections and the high increase of first reading agreements resulting in a lack of transparency, are compromising the legitimacy of the decision-making process when heed is paid to Beetham s first and third condition. The analysis concludes that, according to Beetham s three conditions of legitimacy, the empowerment of the EP has only improved the legitimacy of the legislative process slightly. 9 P a g e

5.0 Conclusion This paper has aimed to analyse how we can explain the legislative empowerment of the EP and how the increased power of the EP has affected the legitimacy of the decision-making process in EU. By applying the theoretical lenses of rational choice institutionalism and historical intuitionalism, I have found that the EP s rule interpretation of the treaty articles has been one of the most influential factors. By updated their rules of procedure, they strategically interpreted the formal rules and increased their legislative power. Due to imperfect information, the MS did not predict the EP s behaviour when they established the co-decision with the Maastricht Treaty and became trapped by past institutional choices. Another important factors of the empowerment, has been the EP s ability to successfully utilize the informal procedures and meetings. The Council was more vulnerable than the EP if legislation was delayed. The EP took advantages of that and delayed legislation, in order to achieve more informal legislative power. The most influential actor contributing to this development has been the EP itself. By bargaining and rule interpretation they have effectively maximized their preferences of more legislative power. The MS have also contributed to the development, by delegating power from the Council to the EP. The MS have been pressured and motivated to the delegation, due to constraining past institutional choices and from a desire to enhance the legitimacy of the decisionmaking process in EU. Even though the MS desire to enhance the legitimacy has been an important factor of the empowerment, this paper has found that the legitimacy of the legislative process in EU has only been improved slightly. Decreasing voter turnout at EP-elections and an increased lack of transparency in the decision-making process have affected the legitimacy negatively. However, the increased power of the EP, the only directly elected legislative body, has also increased the legitimacy on other parameters. The EP has a higher level of shared belief with European citizens and the citizens can directly, through the act of voting, express their consent. When taking that into consideration, the relative power increase of the EP vis-à-vis the Council, has actually to some extent increased the legitimacy according to Beetham s three condition of legitimacy. With further studies in this field, it could be interesting to investigate, if it after all, is desirable to have a high level of legitimacy in the decisionmaking process in EU. It might undermine the capacity to deal with high-volume legislation effectively. 10 P a g e

6.0 List of References Beetham, David (1991): The Legitimation of Power, Macmillan Education. Beetham, David & Lord, Christopher (1998): Legitimacy and the European Union, Addison Wesley Longman Ltd. Cini & Borragàn (2013).European Union Politics, 4 th ed., Oxford: Oxford University Press Eurobarometer (1997): Standard Eurobarometer, report number 47, European Commission (URL: http://ec.europa.eu/public_opinion/archives/eb/eb47/eb47_en.pdf, first accessed 1 June 2014) Eurobarometer (2012): Standard Eurobarometer, report number 77, European Commission (URL: http://ec.europa.eu/public_opinion/archives/eb/eb77/eb77_publ_en.pdf, first accessed 1 June 2014) European Election Database (2014): Parliamentary elections and EP elections, URL: http://www.nsd.uib.no/european_election_database/ (First accessed 2 June 2014) Farrel, H. & Héritier A. (2005): A rationalist-institutionalist explanation of endogenous regional integration, Journal of European Public Policy, 12:2 April 2005: 273-290 Farrel, H. & Héritier A. (2003): Formal and informal institutions under co-decision: Continuous Constitution-Building in Europe, Governance: An International Journal of Policy, Administration and Institutions, Vol. 16, No. 4: 577-600 Heywood, Andrew (2013): Politics, Palgrave Macmillan, 4th Ed. Hix, Simon & Høyland, Bjørn (2013): Empowerment of the European Parliament, Annual Review of Political Science, Vol. 16: 171-189 Hix, Simon (2002): Constitutional agenda setting through discretion in rule interpretation: Why the European Parliament won at Amsterdam. British Journal of Political Science, 32 (2): 259-280 Katznelson, I & Weingast, B. (2007): Preferences and situations: Points of intersection between historical and rational choice institutionalism, Russell Sage Foundation Publications Pierson, P (2004): Politics in Time: History, Institutions, and Social Analysis, Princeton University Press Pollack, Mark (2003): The Engines of European Integration: Delegation, Agency and Agenda Setting in the EU, Oxford University Press Pollack, Mark (2006): Rational Choice and EU politics, In Handbook of European Union Politics, Sage Publications ltd, pp. 31-55 Pollack, Mark (2008): The New Institutionalisms and European Integration, In Wiener, A. & Diez T: European Integration Theory, 2 nd ed. Oxford University Press: 125-143 11 P a g e

Rittberger, Berthold (2005): Building Europe s Parliament: Democratic Representation beyond the Nation State, Oxford University Press Rosamund, B. (2000): Theories of European Integration, Palgrave Macmillan Witte, Bruno, et al. (2010): Legislation after Lisbon; New opportunities for the European Parliament, European Union Democracy Observatory, European University Institute 12 P a g e