Cum se fac legile în UE

The anti-democratic system by which we are governed

How EU Laws are Made

 Dr Lee Rotherham

EU governance takes place in a landscape of complex, half-hidden structures that in other societies would suggest the ossified residue of centuries of struggle and compromise. This paper offers a sketch of this landscape.

Table of Contents

Basic Terminology ......................5

Legislative Process......................6

Roles and Power .......................12

Parlimentary Dynamics................16

Decisions of the Council .............23

Trends and Tendencies ..............26

http://www.brugesgroup.com/HowEULawsAreMade.pdf


[...] 3. ROLES AND POWERS

A full account of the EU legislative process would contain massively more detail than is
contained in the brief description above. It would, for example, say which majority triggers
what result down the chain. Rather than piling detail on detail, though, more is to be gained
by looking at the legislative process from alternative vantage points, and at the motivations
and drives of the various participants.

3.1 The Commission

The Commission, as already suggested, is very much in the driving seat. Technically, it has
three roles. First, it is the initiator of legislation. Second, it monitors the application of EU
law by the member states. In this second role, it is a kind of public prosecutor, and it has
on a number of occasions taken member-states to the European Court of Justice when it
perceives them to have transgressed EU law.

Third, when agreed policies fall within its management remit, it carries out those policies
through its agents and representatives. This includes its burgeoning foreign affairs entity,
since Lisbon has given actual legal form in the shape of the External Action Service. It also
includes representing the EU in areas of international trade. This explains why, for instance,
the President of the Commission attends G8 meetings.

But there remain many areas of contention over the respective powers of the Commission and
national governments. This was most patently observed in the crossover of responsibilities
at the Rio Earth summit, where national delegations and the Commission representatives did
not see eye-to-eye over primacy, resulting in a clash over delegation rights and access. Also,
at international conferences in areas covered in part of the Communities Treaties (Health, for
example), there have been arguments over whether the Commission or the member states
should take the lead role.
[...]

4. PARLIAMENTARY DYNAMICS

The political dynamics of the parliament might be summarised as a tangled web of interests
and objectives. The most important of these are discussed below.

4.1. Bloc Power

The EP power structure is one of party blocs (or Groups) that are agglomerations of MEPs
elected on a national basis. The Groups represent the basic tenets of the national parties,
though there can be major differences in ideological opinion within a bloc. The PES, or
European Socialists, for example, is divided between old style socialists and quasi-Blairite
socialism-lite. The British Conservatives and some other allies used to be part of the EPP-ED
alliance, forming a Group, but retained their own whip.2

This general set of circumstances creates a series of currents, dynamics, and repelling forces
within the Parliament.
[...]

4.2 Agendas

Sometimes politicking goes beyond policy debate. In some areas, a form of consensus
arises which unites a large number of MEPs across Groups or parties, making bedfellows of
politicians from very different ideological backgrounds. There are two classic examples

(i) The Anti-Extremism Agenda

This is a subject on which critics claim that there is a knee-jerk reaction amongst the parties of
the Left and Centre Left. Essentially, a number of individuals and groups have been identified
as extremists, following allegations of racism.

These allegations may, or may not, be fair and accurate. In one case, the allegations may be
pursued at least in part by elements of the national media because the party in question is a
nationalist party that threatens the unity of the state (the case in point being the Vlaams Bloc,
now superseded by the Vlaams Belang). It may be deemed a populist threat, because it is
popular. Wider foreign reporting on a party may be based on preconceptions, as revealed
by the major change in the BBC’s analysis of Pim Fortuyn’s politics and personality after
his murder. The key point for this analysis is that a perception supported by national parties
opposed to the party in question is developed by national media, and that labelling then
appears on the political scene at Brussels.

An example of this appeared when Jorg Haider’s Freedom Party was invited into a
power-sharing national government, which led to calls for the Austrian Representation to
have all of its rights suspended as per the Treaty of Amsterdam. The Freedom Party had
been described by leading politicians in Brussels as xenophobic and racist, and a consensus
emerged on the Left that the Austrian (mainly Centre Right) coalition government should be
punished by isolation.

The basic objective of such a cross-group alliance is that parties that are neo-fascists
and racists should be isolated. However, this is not without democratic risk. An attempt
to blackball the politics of hate, despite good intent, may be interpreted by many ordinary
citizens as a move to suppress their own freedom of choice in a democracy. The claim also
arises that a ‘cosy consensus’ of establishment politicians is trying to suppress opponents
who will open up debate on issues that are important to many voters, complaining that
important issues have been swept under the carpet. There is also massive controversy over
who decides whether parties are extremist (that is to say, xenophobic) or radical (with a policy
agenda vastly different from their critics): by establishing a consensus lock, divergence is
seen as radicalism and extirpated, and only extremism is left for the disillusioned. Hence,
a cross-party alliance, rather than crushing extremism, can ultimately fan it by endorsing
censorship.

(ii) The Reformist Agenda

The fight against corruption is another issue that unites politicians across the divide. Here, the
unity is one not of political groups, but rather of ideals. Paul van Buitenen is an example. He
spoke out as a whistleblower against corruption in the system, and was subsequently elected
as an MEP. There have been others like him who have come out against fraud and waste, but
who believe that a form of European governance or system is needed. This puts them in the
same boat as people like former MEPs Chris Heaton-Harris and Jens-Peter Bonde, both of
whom are Eurosceptic and have been heavily engaged in the anti-corruption campaign.

The activities of these campaigners has been set against the apathy or indeed collusion of a
number of MEPs (especially in the leadership) who prefer to sweep things under the carpet.
An example was the fate of an attempt to get the whistleblower Marta Andreasen to testify
to a parliamentary committee. The Centre Right members and the EPP chair blocked her
appearance. When she herself subsequently became an MEP, further collusion occurred to
block her from being appointed vice-chair of the committee charged with scrutinising the
budget, despite such nominations traditionally being accepted.
[...]

5.1.2 National parliaments

National parliaments, on the other hand, play only a small role. Their input is minor. Their
power is negligible. They have committees dedicated to monitoring legislation, where material
goes through practically on the nod.

Owen Paterson MP once recalled how as a member he had turned to address a colleague,
turned round again, and in the meantime a piece of legislation he had wanted to object to had
already gone through along with three or four others.

But even if MPs objected (and with a government majority, that is unlikely), the outcome would
merely be that the measure was discussed on the floor of the House, where a Government
majority typically reigns. MPs would be debating material which had already been agreed in
international negotiations, and which the Government was obliged to get through the House.
Under the Ponsonby Convention, if the Commons voted down such a measure, it would still
become law, but the Government would fall. Few government MPs are likely to back such a
vote.
There are also those elements of EU law that come into force notwithstanding the position of
Parliament. Typically, these are witnessed through the passage of the Statutory Instrument, a
shady type of administrative legislation that is increasingly used and that deserves far greater
scrutiny.

There were attempts in the Convention on the Future of Europe to redress the balance, but
these were watered down. An attempt to introduce a Red Card procedure, or veto by a
national parliament, was blocked. In its place, a Yellow Card/Orange Card hybrid solution
was offered. A Yellow Card is created when one third of national parliamentary chambers
unite in opposition to a measure. This power they already had in any event, and the fact
that such a coming-together would be extraordinarily difficult, plus the fact that there is no
requirement for the Commission to do anything in response, makes it a weak substitute.

An Orange Card would be triggered if a majority of national parliaments carried on with
the action. Given that this would mean a majority of Governments in the Council would be
opposing the Commission’s activity already, it is hard to envisage the circumstances where
that would come about.

National Parliaments could in any event do more individually. Some of the Nordic countries
regularly append a ‘scrutiny reservation’, meaning that laws would only come into force if
consented to by parliament. Clearly, governments dislike this form of restriction, so this is not
as widely used as would be useful for democratic purposes.

A final complication here comes in the form of devolved or federal governments, where
regional representatives (in the UK’s case, MSPs in particular) and their committees have an
end-process and monitoring role.[...]

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