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Árpád LAPU: The Council as a second chamber – an idea contrary to the principle of institutional balance?

During the last years, numerous institutional reform-proposals have surfaced in the European public discourse and in the EU institutions, aiming to improve the visibility of the EU institutions in the eyes of the European public. One of the reform-proposals that has resurfaced from time-to-time is the idea of establishing a bicameral legislative system and/or renaming the Council of the European Union to the Senate of the EU. Such reforms regarding the Council were included in documents adopted by the European Parliament plenary and the committees, in the final report of the Conference on the future of Europe and it was discussed in the publications of the official research service of the European Parliament (EPRS) as well. 

Although renaming the Council might make it easier for the citizens to understand the structure of the EU better, it is necessary to assess the effects of such a radical change, as it would in fact mean the rethinking of the function of one of the legislative bodies of the EU in the EU’s institutional system. Many member states have bicameral legislative systems, the question is, would the introduction of a two-chamber system have any benefit in the institutional structure of the EU as well? Upper chambers of national parliaments usually have a historically developed function and many of them do not have strong powers in their respective constitutional systems. One might consider that the EU is – even though it can be described as a sui generis entity – an international organization and as such, it would be unusual for it to have a two-chambered legislative body.

As an international organization, the European Union was established through founding treaties and their modifications. Member States have either transferred or shared part of their sovereignty in the European integration to make the functioning of the EU possible. Negotiating these treaties involved a long, sensitive and difficult process, reaching many compromises. The institutional setup and the catalogue of competences, the responsibilities of each EU institutions were a fundamental part of these negotiations. 

Adopting a model of a weak upper-chamber may lead to the erosion of the balance between institutions. The principle of institutional balance is arguably either the manifestation of separation of powers on EU level, or a supplementing principle to it, making it an elemental part of the principle of rule of law. This post is assessing whether the effect of reforming the Council of the European Union as a second legislative chamber in the EU architecture might lead to the corrosion of institutional balance between the EU institutions. 

Bicameral parliaments in different member states

According to a report prepared by the Venice Commission from 2006, 17 countries have two chambers in the continent of Europe. Inside the European Union, thirteen member states have a bicameral legislative body. In many cases, it is closely related to federalism, in other cases it is related to decentralization or regionalization. Second chambers usually play an important role between the center of the state and the geographical components of the state (for example in the case of Germany). The main function of second chambers is to represent sub-national authorities. Historically, there used to be more aristocratic chambers, but they are in the decline in a worldwide comparison. There are many bicameral states, but they also face criticism (cost related arguments, delay in decision-making) and in some cases (Sweden, Finland, Croatia), second chambers have been dispensed with.

If we assess the functions and powers of second chambers, we can see a variety of examples. There are few instances, where second chambers have the same powers and responsibilities as their first chambers (equal bicameralism), an example to this model is Italy, where the Italian Senate has equally strong powers as the lower house and it is important to note, that the Senate is also elected by direct universal suffrage. Other examples are Switzerland and Bosnia and Herzegovina. Romania and Russia used to have equal bicameralism, but not anymore. In all other instances, the bicameralism is unequal; the second chambers exercise significantly fewer powers as the first, having no budgetary powers (Austria, Ireland, Czech Republic, United Kingdom) or no powers to amend the budget without the agreement of the government (Spain). Some second chambers have no right to amendment (Austria, Netherlands) or in other cases, amendments tabled by senators are rarely approved. In most of the cases, the first chambers make the last and most important decisions on legislation. In some instances, the second chambers have powers amounting to the right of veto.  

Therefore, we can establish that in the majority of the cases the second chamber has significantly fewer powers as the lower house. The question is therefore, what a proposal for a European Senate would exactly mean.

The proposal of a bicameral legislative system

The Final Report of the Conference on the Future of Europe does mention the idea of renaming the Council of the European Union to “Senate of the European Union”, however, it does not give any clarification on further ramifications or changes in the institutional setup. It is merely an idea to increase the visibility of EU institutions.

In the report of the European Parliament on Parliamentarism, European citizenship and democracy (2023/2017(INI)), the EP argues that the Council is in fact already “often portrayed as” the second chamber of the EU legislative system. In the explanatory statement of the rapporteurs, they describe the ideal structure as the lower chamber (EP) representing the citizens, and the Council as the upper chamber representing the Member States, just like in a federal state. It proposes to reform the General Affairs Council and the rotating presidency to improve the legislative process “in a bicameral system”. It argues that unanimity voting in the Council is “a de facto impediment to the advancement of the European agenda”. It proposes to reduce the number of Council configurations, demands transparency in Council meetings. The report also demands that the European Council should halt with the practice of exercising executive and legislative functions. It entails establishing the (general, direct) right of initiative of the European Parliament and argues that the European Electoral Law and the right of inquiry INL and INI proposals of the European Parliament should not be blocked in the Council and need to progress, thus referencing the introduction of transnational lists and stronger powers for the European Parliament through the setting up of inquiry committees. It suggests giving the European Parliament the full control over its own resources and budget. 

European Parliament resolution of 16 February 2017 on possible evolutions of and adjustments to the current institutional set-up of the European Union (2014/2248(INI)) declares that the European Parliament already considers the Council the second chamber of EU legislature and argues for establishing a system of permanent chairs instead of the rotating presidency. It would significantly change the inner structure of the Council, as it would become one single legislative Council and the Council formations would be turned into similar bodies as the committees of the European Parliament. At the same time, it would give the European Parliament a (general, direct) right of initiative. Other European Parliament resolutions (here and here) have also argued that the Council is already the second legislative chamber of the EU. 

European Parliament resolution of 13 February 2019 on the state of the debate on the future of Europe (2018/2094(INI)), in article 10 it proposes to transform the Council into a true legislative chamber on an equal footing with the European Parliament. However, in article 6 it also states that the instances, where the European Council exercises legislative functions are weakening institutional balance and argues for the community method. Thus, the goal of transforming the Council in this case would mean an implicit strengthening of the prerogatives of the European Parliament. 

Considering the proposals above, the European Parliament would gain a significant advantage in the EU’s institutional system over the Council. The EP would have the right of initiative, control over its own budget, through the reform of the electoral law and the establishment of the Union-wide constituency it would depend less and less on the member states during elections.  Council configurations would be reduced or transformed and the European Council would become less active. By a change from unanimity to qualified majority voting in more areas in the Council, the members of the Council would lose a significant power to stop legislative initiatives. In addition, the fact that the Council is not elected, but their members are appointed by the member states further amplifies the imbalance between the two institutions in the reform proposals of the European Parliament. The report of the European Parliament on Parliamentarism, European citizenship and democracy and other above mentioned resolutions proposes therefore a model of unequal bicameralism, with a weaker Council as it is in the current system in force.

EPRS also assessed many possibilities for avenues reforming the role of the Council, leading to it becoming an “upper house”. It has dealt with the idea of reshaping the Council configurations, reforming the legislative procedure by making meetings in the Council transparent, establishing a chamber representing member states, much like in a federal state. The idea seems to be, however, mostly, trying to regulate the Council in a way that restricts its current functioning by establishing the framework of the “second chamber”, except for one detail, the question whether the Council should have the right of initiative. 

There was a further proposal before the European Convent (2003) for a second chamber as well, not involving the Council, according to which the national parliaments would have been represented in a second chamber, overseeing the application of the principle of subsidiarity. Another idea was to involve them in the parliamentary control of certain, intergovernmental policy fields (mostly the common foreign- and security policy). However, the proposals currently debated in the European public discourse deal with the “parliamentarisation” of the Council.

A European Senate would be against the principle of institutional balance

Second chambers have many uses. They are often characterized (depending on the state) as embodying measures of wisdom, balance, expertise, they often have a historical nature, play a balancing role in federal states, have more freedom to express opinions, or represent interests of specific, in some cases neglected groups or ideas. However, none of these arguments seem valid for modifying the institutional setup of the EU. 

It is worth remembering the history of the European integration when we assess the question of the Council becoming a second chamber. Even though the European Coal and Steel Community had a European Parliamentary Assembly, it did not have such significant powers as today. It has gained its powers gradually. In the beginning, the most important decision-making body was the predecessor of the Council, and the High Authority played an important role in the implementation. The whole structure was established for (a new kind of) international organization. Through development in time, it has gained some role in the budgetary procedure, has gained legislative powers, role in the appointment of candidates for certain positions, etc. As the powers of the EU grew, the powers of the European Parliament have expanded significantly as well. This is how we have reached today’s question about the reform of the Council, the Council has not changed as much as the European Parliament, which experienced a fundamental shift in its role. 

Many of the reform-proposals regarding a new, bicameral parliament of the EU would lead to weakening the Council of the European Union and placing it in the shadow of the EP. Parliament would gain further rights (right of initiative, budgetary powers, stronger right for setting up inquiry committees, being elected through a Union wide list), while the Council’s formations would be strictly regulated, its members would still be appointed through an indirect legitimation procedure and the role of the European Council would become unclear. It is safe to say that the new model proposed by the European Parliament would establish an unequal bicameralism, where the Council would play a secondary role to the European Parliament.

The principle of institutional balance is the manifestation of separation of powers on the EU level and an elemental part of the principle of rule of law. This balance would be significantly eroded by the reforms in question. Even though its rights have expanded greatly in the last decades, the European Parliament is proposing to introduce new powers for itself, while it plans to restrict the role of the Council drastically. As the European Court has stated in  Case 70/88, Parliament v. Council, “Observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions”

It is one thing to strive for such reforms and another to be able to adopt them. Treaty modifications require consensus at the end of the procedure. The ultimate question is, would all of the member states agree to weaken their positions in the structure of the European Union?  

Árpád LAPU is a policy adviser on constitutional issues at the European Parliament since 2019 and a PhD student of the Károli Gáspár University of the Reformed Church in Hungary. Between 2017-2019, he worked as an adviser at the Cabinet of the Minister of Justice of Hungary, conducting comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an Edx MicroMaster in cooperation with the Catholic University of Louvain (UCLouvain) in international law. His field of research is non-participation in armed conflicts in international law and constitutional norms regarding non-participation in armed conflicts. He has written publications regarding the future of the EU ETS system of the European Union, institutional reform proposals of the Union, and researches in the field of social sciences.

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