On 11 March, the European Parliament voted to accept a revised Framework Agreement governing relations between itself and the European Commission. In a previous blog, I looked at some of the stresses and strains that accompanied the negotiations to upgrade the relationship between the two bodies. Both institutions can be fairly satisfied with the final outcome.

Parliament has won from the Commission several promises, namely, that it will be more fully consulted on the EU’s evolving work programme, including any withdrawal of draft legislation; that the Commission president-elect will be more forthcoming about the shape and structure of the incoming college; that the relevant Commissioners will try to be more present in plenary and committee meetings; that MEPs will be more fully informed about the progress of international negotiations, including the provisional application of international agreements; that recourse to the urgency procedures under Article 122 TFEU will be fully justified by the Commission; and that the Commission will be more helpful in following through Parliament’s own legislative initiatives under Article 255 TFEU. Both parties agree that parliamentary proceedings should be revitalised, especially at question time — a worthy goal.

Parliament’s report on the revised Framework Agreement was drafted by Sven Simon (EPP/DE), the chair of the Constitutional Affairs Committee (AFCO).¹⁾ Simon claims “an institutional advance” for the Parliament and told the plenary debate (9 March) that the agreement reflects the “natural evolution” of Parliament’s rights. Maros Sefcovic, for the Commission, agreed that there was a “clear need” to revise the Agreement in light of institutional developments, including changes made to Parliament’s internal rules of procedure. The Commission is hoping that the closer involvement of MEPs in international trade talks will better their understanding of the issues at stake. Similarly, closer Commission participation in the design of Parliament’s own legislative initiatives can only add to their quality.

The Council objects

Watching from the sidelines, however, the Council has become upset at the emergence of a “geopolitical” Commission that is ever more parliamentary in character and ever less technocratic. The smooth revision of the Framework Agreement was interrupted by COREPER, the EU’s senior body of member state ambassadors, which fired off a petulant letter, objecting to these reforms. The root of the objections, articulated by the Council Working Party on General Affairs (GAG), is Parliament’s claim to enjoy equal treatment with the Council. As the revised Agreement boldly states:

“9. The Commission guarantees that it will apply the basic principle of equal treatment for Parliament and the Council, especially as regards access to meetings and the provision of contributions or other information, in particular on legislative and budgetary matters.

“10. The Commission shall cooperate with Parliament and the Council on an equal footing, in full respect of the balance between the institutions and the institutional prerogatives conferred on them by the Treaties. Where appropriate, the Commission shall take all necessary initiatives with a view to reconciling the positions of the co-legislators, acting as an honest broker.”

The Council wants to keep MEPs as much as possible out of international negotiations. It finds no grounds in Article 218(5) TFEU to let Parliament in on a decision about the provisional application of treaties. The Council is keen to preserve its privileged position over emergency measures under Article 122 TFEU and is protective of its rights of budgetary scrutiny against incursions from MEPs. When it comes to legislative initiatives, the Council jealously protects its own prerogatives under Article 241 TFEU to launch a draft law and objects to the special treatment now promised by the Commission to Parliament. The class of special laws of the Council, promulgated without Parliament’s involvement, will be fiercely protected. The Council also distrusts Parliament’s internal security practices when the sharing of confidential information is concerned. The Council let it be known that it reserves the right to defend its prerogatives at the European Court of Justice.

This curious interinstitutional spat will probably pass. The Council is unlikely to follow up on its threat to sue the other two institutions at the Luxembourg court. Subsequent six-monthly presidencies of the Council may be more Parliament-friendly than the current Cypriots. There was an impressive Parliamentary majority uniting all the centrist groups — 446 votes to 100 — in support of the new Framework Agreement, and this should be sufficient to quell any Council rebellion. Wiser heads at the level of the European Council will try to steady the EU institutional ship at a time of great international and domestic turbulence. When other interinstitutional agreements, such as that on better law-making, come up for renegotiation, all parties will have a fresh opportunity to have their say.

Something else is going on

Nonetheless, the quarrel over revising the Framework Agreement points to something more serious, namely rising instability at the heart of the Union’s operating system. Another sign of troubled EU governance is the growing criticism levelled at President Ursula von der Leyen for over-reaching herself, not least in the field of foreign, security and defence policies and, importantly, enlargement to Ukraine. The Council’s paralysis in knowing how to respond to Parliament’s perfectly legitimate demands for treaty change is a much-neglected constitutional problem. And the European Council’s incapacity to cope with blatant breaches of the EU rule of law by at least one of its own members becomes ever more embarrassing.

With the spotlight now turned on the Council, one can have sympathy for this poorly led ministerial body, working always under the looming shadow of the heads of state and government in the European Council, condemned to try to reach consensus among 27 oft-shifting members. The Council is obliged by treaty to share its executive power, on the one hand, with the Commission and its legislative power, on the other, with the Parliament.

The Council is scarcely helped by reference back to its official mandate. Article 16(1) TEU lays down that “[T]he Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy making and coordinating functions as laid down in the Treaties”. Compare that to the Parliament’s own brief, in Article 14(1) TEU, which says that it “shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties”. (MEPs put much weight on the concept of “political control” in the negotiations of the revised Framework Agreement.)

Then along comes the Commission, which under Article 17(1) TEU, “shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law … It shall exercise coordinating, executive and management functions, as laid down in the Treaties”.

Powerful as the Commission is meant to be, under Article 15(1) TEU it falls to the European Council (of which the Commission president is a non-voting member) to “provide the Union with the necessary impetus for its development and … define the general political directions and priorities thereof. It shall not exercise legislative functions”. To oil the wheels of good governance, therefore, much has to rest on the injunction of Article 13(2) TEU that “[E]ach institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation”.

Simple this is not. Democratic it may be, but it has become impossible to explain to the citizen who’s in charge of the Union. There is no obvious discernible government. With the best will in the world, mutual sincerity between competing and overlapping institutions has its limits.

Helping the Council cope

The last revision of the Treaties was signed at Lisbon as long ago as 2007. One can begin to wonder if another general revision of the treaties would not be timely if only to codify who does what as the balance of power shifts between the EU institutions and its member states. The present EU looks increasingly like an unstable confederation in search of federal legitimacy. It would be helpful for democracy were a clear course to be set for the Commission to evolve, over the longer term, into a strong executive authority, accountable directly to a robust bicameral legislature, all under the judicial authority of a federal supreme Court.

In the short term, however, now that the Parliament has settled its relations with the Commission, it should turn its attention to the Council. Why not set up a joint task force between AFCO and the General Affairs Council to identify mutual concerns and seek solutions? Issues at stake would include the apparent disjunction between the ambitions of the European Council and the capacity of the Council of Ministers to give effect to them; the uneven quality of the conduct of trilogues as part of the ordinary codecision procedure; the unsatisfactory system of parliamentary questions; and the patchy participation of ministers in Parliament’s plenary sessions. There are, in fact, various constitutional knots to unpick, entangling both bodies.

New challenges emerge, notably the revival of enlargement and the prospect of a new intergovernmental defence treaty, that were unforeseen at the time of the Lisbon settlement. The constitutional list is long. Best tackle at least some of the problems before the next European elections and the new institutional round is upon us in 2029.

In any case, substantive dialogue between the Parliament and Council will be good training for the next Convention (Article 48(3) TEU) — whenever it comes.