This section outlines the legislative and treaty amendment processes and how the EU democratic legitimisation set out in Title II TEU operates in practice, to provide a characterisation of the dual EU democratic paradigm that the ECI and EUA have been introduced in to and which, to some degree, they challenge.211 As we will see below, one of the characteristics of the EU is the distinction between the way in which EU level decision making operates and is legitimised and the way in which the EU constitutional framework in the treaties is formed and legitimised. First, there is an outline of the largely intergovernmental approach to treaty amendment and its legitimisation.
The ordinary revision procedure to amend the treaties is set out in Art 48 TEU:
1. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.
2. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph
3. The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.
4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties. The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.
This treaty amendment process means that the more supranational of the EU institutions, the European Parliament and the Commission, have only limited involvement in the treaty amendment
211
process. Both can make proposals for the treaties to be amended but they have little influence, only being consulted, over whether proposals actually lead to the initiation of the revision procedure. The EU level institution that does influence the agenda and outcomes of the treaty amendment process is the European Council, which is made up of Member State heads of state or government. Other Member State representatives decide what amendments to the treaties will be made as a result of the recommendations from the Convention, and the final step is ratification at Member State level in accordance with their respective constitutional requirements. In the UK, following the enactment of the EUA, the ratification requirements will usually be an Act of Parliament and, where the criteria are met, approval by referendum of the proposed changes. The treaty amendment processes are therefore legitimised via Member State level democratic activity. The role of the European Council and the other Member State representatives is legitimised through the election of heads of state and the government in each Member State. In accordance with Art 48(4), ratification then specifically involves Member State level legitimisation, usually through Acts of Parliament or referenda.212
There are also two simplified revision procedures set out in Art 48(6) and Art 48(7) TEU.213 In terms of their intergovernmental character and the Member State control over the process there is little difference between the ordinary revision procedure and Art 48(6) TEU.214 The European Council must act by unanimity when adopting a decision under Art 48(6) TEU and it will only enter in to force once it is ratified in accordance with Member State constitutional requirements. Art 48(6) TEU though specifically applies to Part 3 of TFEU and it cannot be used to increase the competences of the EU. The provisions in s3 EUA would usually require a positive referendum result to approve a decision taken under Art 48(6) TEU. The European Council must also act by unanimity to adopt a decision under Art 48(7) TEU, but there is no provision for approval in line with Member State
212 On the Treaty amendment procedures, see G. Barrett, "Creation’s Final Laws: The Impact of the Treaty of
Lisbon on the ‘Final Provisions’ of Earlier Treaties" [2008] YEL 3, 7–27; and S Peers, ‘The Future of EU Treaty Amendments’ [2012] YEL 17.
213 For detailed discussion of the simplified revision procedures see S Peers, ‘The Future of EU Treaty
Amendments’ [2012] YEL 17, 31-47.
214
Art 48(6) TEU: The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union.
The European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties.
constitutional requirements.215 National parliaments are able to oppose an Art 48(7) TEU decision and stop it being adopted. The decisions in Art 48(7) TEU relate to changes in voting procedures during the legislative procedures that apply to a wide range of policy areas. S6 EUA requires a referendum to approve decisions taken in relation to most of these policy areas.
Since the Lisbon Treaty there have only been two legislative procedures, referred to in Art 289 TFEU as the Ordinary and special legislative procedure.216 The ordinary legislative procedure, which is set out in detail in Art 294 TFEU, is initiated by the Commission by submitting a proposal to the Council and the European Parliament, and these two institutions jointly exercise legislative and budgetary functions in the Union. Supplementary to this, the European Parliament also exercises political control and consultation,217 and the Council carries out policy making and coordinating functions.218 The special legislative procedures, which are specified in the treaty articles relevant to the areas of law and policy where they are to be used, vary this process, usually according to the involvement of the EU institutions or the voting procedure to be followed.219 In general, a critical difference between the OLP and an SLP is that the SLP provides Member States a veto in the Council, whereas OLP decisions are passed using a form of QMV.
A key difference between the treaty amendment process and the EU legislative process is that the latter is completed at EU level. Art 16(2) TEU states that “The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote”. There is also no provision for a second stage involving the respective constitutional provision of the Member State, except in a limited number of instances
215
Art 48(7) TEU: Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.
Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.
Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision.
For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.
216
Art 289(1) and (2) TFEU. For comment on the change to these legislative procedures see M Dougan, ‘The treaty of Lisbon: winning minds, not hearts’ [2008] CML Rev 617.
217 Art 14(1) TEU. 218
Art 16(1) TEU.
219 For example the Art 22 TEU right for EU citizens to vote in municipal elections in their host Member State
“shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament”.
as specified in the treaties.220 The other procedural exception is the oversight of the legislative process provided by the ‘yellow card’ system for national parliaments, which means that Member State level institutions can have some involvement in the otherwise EU level institutional legislative process.221
EU legislative procedures and policy making are democratically legitimised through both supranational and Member State level means. The Members of the European Parliament are legitimised through direct European elections. The representatives in the Council and the European Council, which has a strong influence over the policy agenda of the EU institutions despite not having a direct role in the legislative process, are nominated by Member State Governments elected in Member State elections.222 From a citizen perspective this means that EU citizens have the right to vote in European Parliament elections to democratically legitimise the selection of representatives at EU level and the European Parliament’s role in EU level law making,223 and for UK citizens, as a Member State example, they have the right to vote in UK parliamentary elections, which provides some indirect democratic legitimacy for the UK’s EU policy and representatives in the European Council and the Council of ministers.
The Commission, which has a virtual monopoly over legislative initiation, is something of an exception in legitimisation terms as its members are not elected and once nominated by a Member State they are expected to promote the ‘general interests of the Union’,224 which removes it from indirect legitimisation via Member State elections. The Commission though does derive some limited democratic legitimacy through its accountability to the European Parliament. Art 17(7) TEU establishes first that the list of members of the Commission adopted by the Council on the basis of Member State suggestions is subject to a vote of consent from the European Parliament; and secondly, the wording of Art 17(7) TEU was interpreted in 2014 as meaning that the Commission president candidate from the party grouping that gained the most seats at the European Parliamentary elections was expected to be proposed by the European Council, and then be selected as a Commission President subject to a vote of approval in the European Parliament. Supplementary to this legitimisation of its membership via a representative institution, the Commission is now potentially legitimised by the supranational, direct democratic instrument of the ECI. There is a
220
These are the so called organic laws, which are discussed in more detail in chapter 4.
221
Art 12 TEU. Yellow card process established in the Protocol on the application of the principles of subsidiarity and proportionality.
222 Art 15(2) establishes the composition of the European Council and Art 15(1) TEU states “The European
Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.”
223 Art 20(2) TFEU. 224
possibility that this may happen in the long run because the ECI gives citizens the chance to ask the Commission to propose a legal act of the Union selected by the ECI organisers. If the Commission responds to the indication of citizen preferences, it could lead to a closer alignment between citizen choices and EU policy, thus enhancing popular sovereignty and therefore EU democracy. As we will see in later chapters, however, the potential to legitimise Commission decision-making is not likely to be strongly realised.
It is almost exclusively EU institutions that are involved in the political process of EU law and policy decision-making and these are legitimised through both supranational and Member State level democracy, whereas there are both Member State and EU institutions involved in the more intergovernmental political process of amending the treaties, but these are only legitimised through Member State democratic processes. To fit within the standard paradigm it would be expected that the ECI is used to legitimise EU level legislative and policy decision making, and the EUA is used to legitimise treaty amendment. They both do this to a large degree, but it will be seen in the subsequent chapters that they also pose some questions to the democratic paradigm in terms of EU citizens being able to influence treaty amendment through the ECI and the use of Member State level referenda triggered by the EUA to approve decisions taken in supranational institutions.