Explaining the European Parliament's right to appoint and invest the commission

Abstract

The impressive development of the European Parliament's powers over Commission appointment and investiture may be explained by looking at interstitial institutional change and its subsequent formalisation. The Parliament, since it is less sensitive to failure and has a longer time horizon, was able to create interstitial change to its benefit by its ability to delay or block the functioning of the European Union. Interstitial institutional change may be formalised in the Treaty despite initial opposition by some member states because the informal rule has altered the status quo and thereby may have induced a preference change of member states. Given that pro-integrationist member states usually see granting more power to the Parliament as a priority, member states less inclined towards integration might grant more power to the Parliament if they perceive no de facto change in the existing power distribution linked to the formalisation.

Notes

1. Which will probably not be implemented because it has been rejected in the French and Dutch referendums at the time of writing. Still, this would constitute a concession by the member states to the EP regarding its right of confirming the Commission.

2. I will include the draft Constitutional Treaty among the occasions for formal changes under consideration. While it is true that it has no legal effect before being ratified by all member states, it nevertheless indicates the potential for formal changes and in this way can be considered as obeying the same logic as the other treaties.

3. In this context, formal changes, as opposed to informal ones, are changes subject to supervision by the European Court of Justice.

4. The primary sources regarding the Stuttgart Declaration were not available in the European Council's archives. I will therefore rely on secondary sources only for the first two sections.

5. Solemn Declaration on European Union. European Council, Stuttgart 19 June 1983. Bulletin of the European Communities, No. 6/1983.

6. By definition, the declarations of the European Council should be considered an interstitial institutional change, because they are not subject to Court revision. However, this is interstitial institutional change created unilaterally by the member states, which is thus close to the logic of treaty revision. Consequently, it would complicate the analysis to equate them with interstitial institutional changes created after a bargain between the three supranational institutions, and I will not introduce the declarations of the European Council as a unit of analysis.

7. In 1994, the European Court of First Instance ruled in Roujansky v. Council of the European Union (where a private citizen attempted to annul a declaration of the European Council on the date of entry into force of the Maastricht Treaty) that because Article 31 of the Single European Act expressly excluded the application to the European Council of the provisions of the Treaty concerning the jurisdiction of the Community judicature, and because this exclusion was maintained by Article L of the Treaty on European Union, the Court was not competent to review a declaration of the European Council.

8. Minutes EP, 11 December 1985, cited by Corbett (1998).

9. Resolution Martin, doc PE 144/177/def, 31 October 1990.

10. Internal note of Commission service, January 1991.

11. ‘Internal note of Commission service, May 1991 and ‘European Commission, commentaires sur le projet de traité du 8 Novembre 1991 élaborés par la présidence néerlandaise’, respectively.

12. The Genscher-Colombo Plan, presented by Italy and the Federal Republic of Germany, 7 November 1981 (archive from the Commission Service).

13. Solemn Declaration on European Union. European Council, Stuttgart, 19 June 1983. Bulletin of the European Communities, No. 6/1983, pp. 24 – 9 (citation p. 27).

14. Internal note of Commission service, January 1991.

15. UP/26/91, Note de la présidence, 26 February 1991.

16. Moreover, the terms of the Commission and of the EP were made co-incidental, which was opposed by several member states as well. For an excellent review of the event see Corbett (1993).

17. Internal note of the Commission services, June 1992.

18. ‘The European Parliament points out that, if it delivers a negative vote on the name of the person whom the governments of the Member states plan to appoint as President of the Commission, it will refuse the investiture of the Commission if the governments of the Member states present the same candidate again’. European Parliament, ‘Résolution sur l'investiture de la Commission (21 avril 1994): A3-0240/94’, in Journal officiel des Communautés européennes (JOCE), 9 May 1994, no. C 128, p. 358.

19. Internal note of the Commission services, June 1992.

20. Internal note of Commission service, January 1997.

21. Conférence des représentants des gouvernements des Etats Membres, copie – letter, 29 January 1997, CONF/3810/97.

22. Agence Europe, ‘PE/Traité d'Amsterdam: les principales modifications du Règlement du PE approuvées afin de l'adapter au niveau traité’, 10 March 1999.

23. European Commission, ‘Thème de la future Communication institutionnelle de la Commission – principales prises de positions exprimées à la Convention’, 25 September 2002, http://European-convention.eu.int

24. Papers presented by governments and European Commission, http://european-convention.eu.int

25. European parliament, report on convention work, 21 January 2003, http://www.europarl.eu.int/europe2004/textes/verbatim_030121_summary.htm

26. Interview with a Commission Official and with a Council Official, November 2004.

27. Internal note of Commission service, June 1994.

28. It is worth noting that the new framework agreement, sealed between the Commission and the EP in July 2005, does not introduce this principle of individual investiture either, but only recognises that when a member of the Commission should be replaced, the President of the Commission shall present the nominee to the Parliament ‘in full compliance with the prerogatives of the institutions’.

29. From the archives, it is clear that some of the member states did not anticipate these changes.

30. I consider here only formal changes leading to a shift in power, I do not therefore analyse the co-incidence of terms between the Commission and the EP introduced by the Maastricht Treaty.