Future of Europe | Constitutional Discourse

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

by admin | Oct 3, 2023 | Future of Europe

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.

Árpád LAPU: The EDAP, Legal Bases and the Issue of Indirect Legislation. Safeguard or Competence Creep?

by admin | Sep 25, 2023 | Future of Europe

The current legislative period (2019-2024) of the European institutions is without doubt an eventful one, with many questions arising for researchers to find interesting conclusions. A previous article „Stocktaking of the EP’s Current Legislative Term – One for the Books” published on this platform has examined the legislative activity of the European institutions during this mandate. This article will focus on an interesting, specific part of the legislative activity of the EU institutions during this legislative cycle, namely the European Democracy Action Plan (EDAP) package and the legislative initiatives falling under its scope. A common feature of these initiatives is the goal to protect European democracy, but also, most of the proposals under this package seem to bring up interesting questions regarding the legal bases and the lack of competence behind some initiatives.

The European Commission has initiated in 2020 December the European Democracy Action Plan, aiming to step up against various kinds of challenges to European democracy, for example, extremism, undue influence in electoral processes, manipulative content on the internet influencing elections, and protecting journalists against various forms of intimidation due to their work uncovering cases harmful to democracy. At the heart of the package, we can see the goal of the European Commission wishing to protect European democracy from various perceived threats. If we try to unpack the goals further, we can see that the legislations intend to protect many different values and priorities at the same time, such as the principle of democracy, safeguarding the fairness and constitutionality of elections, protecting European citizens from disinformation, protecting media plurality, and in the end, rule of law. These are issues regarding Article 2 TEU, but they have ramifications for the application of the Charter of Fundamental Rights as well. There were other initiatives of similar nature, like the mechanisms and procedures for protecting the EU budget and rule of law, however, due to the scope limitation; this article will focus specifically on the EDAP package.

The EDAP targets goals that are important for all Member States and citizens in the European Union, as it protects different aspects of democracy. Curious, however, why the European Commission has chosen legal bases that are not directly related to the principle of democracy, regulation of elections, protection of fundamental rights, etc., but instead legal bases of a commercial nature, serving the protection of the internal market. Due to the odd choice of legal basis, the problematic of competence creep can be observed in the proposals of the EDAP package, which serves in this form the adoption of EU legal norms in fields where no specific legislative competence has been conferred to the European Union from the Member States. Specifically, indirect legislation (as competence creep) is applied, where the EU legislates areas that are considered to fall within national autonomy, by cutting horizontally through multiple policy areas, not directly related (in this case) to the regulation of the internal market. In another case, the existing competence of the EU is considerably overstepped by certain parts of the proposal. Three significant, illustrative legislative proposals from this package are the modification of the 1141/2014 regulation on the statute and funding of European political parties and European political foundations, the Proposal for a Regulation on the transparency and targeting of political advertising, and the European Media Freedom Act.

Amending the Regulation on European Political Parties and Foundations

The European Commission has initiated the modification of regulation 1141/2014 in November 2021, with the goal of adopting clearer rules on the financing of European political parties and European political foundations, and on sponsored political content (to be in line with the proposal for a regulation on the transparency and targeting of political advertising). The proposal of the Commission, among other goals, included the introduction of an additional category of revenue sources for the regulated entities, establishing the notion of direct funding, and has proposed other measures of financial nature. However, the proposal has also included parts that were not in connection with the financial regulations of the European legal entities in question. The legal basis for the modification was the same as for the adoption of regulation 1141/2014, namely Article 224 TFEU, laying down the regulations governing political parties at European level, meaning European political parties and European political foundations, especially concerning rules regarding their funding.

In Article 3, paragraph 1. (d) the proposal obliges European political parties and foundations to ensure that their member organizations observe the values expressed in Article 2 TEU. Furthermore, according to Article 21 of the proposal of the Commission, the members of European political parties are obliged to demonstrate their compliance with Article 4 (1) point J (adopting internal rules regarding gender balance), and they would have to continuously publish information on gender representation on their website. For the European political party or European political foundation to be able to receive funding from the general budget of the EU, they need to comply with these obligations. If the member organization does not comply, the European political party or foundation might be faced with sanctions, according to Article 30 of the proposal, the party or foundation in question might suffer financial sanctions or in worse cases, might even be removed from the register, losing the status of “European political party” or “European political foundation” in accordance with Article 19 of the proposal.

Moreover, Article 24 of the proposal would lift the ban on the European political parties and European political foundations not to be able to support referendum campaigns in any of the Member States, “when those campaigns concern the implementation of the Treaties of the Union”. This means that in case the Commission proposal would be adopted, a European political party (having member parties from inside and outside of the Union) would have the possibility to support certain referendum campaigns in the Member States.

The proposal, therefore, would not only regulate European political parties but potentially extend to influence national political parties (thus national politics) as well, obliging them to publish information regarding their activities, to modify their internal rules and it would even allow for European political parties with an extensive range of memberships to finance referendum campaigns in the Member States. The latter is even more problematic if we consider that in some Member States it is possible to hold referenda and elections close to each other (or even on the same day). The European Commission has thrived for indirectly regulating national political parties and election rules (a form of competence creep) using the legal basis of Article 224 TFEU, which should only serve to regulate European political parties and European political foundations — and particularly their financial governance. The ordinary legislative procedure of this file is currently in progress, the last trialogue meeting was held on the 29th of March, with no agreement reached.

The Proposal for a Regulation on the Transparency and Targeting of Political Advertising

The Commission has presented the proposal on 25 November 2021 with the goal to complement the rules of the Digital Services Act, specifically focusing on sponsored political advertising. The legal basis of the proposal is Article 114 of TEU (“adoption of measures to ensure the establishment and functioning of the internal market”) and it seeks to establish a common regulatory framework that would enhance the transparency of sponsored political advertising both online and offline. The regulation would require political adverts to be clearly labeled as such and include information on who is the sponsor, the price of the advertisements, and the elections or referenda to which it is linked. Publishers are also required to issue a clear statement regarding the political nature of the advertisement and to make information available regarding the context of the political advertising. They would be obliged to filter if a particular advertisement does not comply with certain transparency requirements. The proposal would also adopt harmonized rules for targeting and amplification techniques of political adverts, and oblige national authorities to sanction those who infringe with the regulation. The trialogue negotiations are currently in progress.

The proposal states in (15), (16), and (17) that the core expression of the regulation, “political advertisement”, has no legal definition in EU law and therefore anything that is disseminated or published directly or indirectly on behalf of a political actor or anything that can be presumed to be liable to influence political debate “except for messages of purely private or purely commercial nature” can be deemed a political advertisement. Also, any publication or dissemination that is “liable to influence the outcome of an election or referendum, legislative or regulatory process or voting behavior” is also a political advertisement.

From this description, which especially states that it does not include purely private or commercial messages, it is evident that the goal of the regulation is not ensuring the protection of the internal market (contrary to the legal basis chosen, as presented above), on the contrary, it is focused on protecting elections, referenda, legislative processes, etc. It clearly states that any ad that might influence national elections falls within the scope of the proposal. Regulating election processes (except for the common rules regarding European Parliament elections) is not within the competence of the European Union. It is safe to assume that the goal of the legislator in this case is also to regulate areas outside of clear-cut EU competences.

The European Media Freedom Act

One of the goals of EDAP is “to protect and empower journalists, and to ensure media freedom and pluralism throughout the Union”. In September 2022, the proposal for the “European Media Freedom Act” (or EMFA) was presented by the European Commission. It takes the Audiovisual Media Services Directive as a starting point and aims to “set rules to protect media pluralism and independence in the EU, including safeguards against political interference in editorial decisions.” The initiative would establish the European Board for Media Services, having a diverse range of tasks according to Article 12. It would — among other tasks — support the Commission in ensuring the correct application of the proposal, and would provide opinions for requests for enforcement measures in case of disagreement between the requesting authority and the requested authority. It would also provide opinions on national measures concerning media service providers, on national measures likely to affect the functioning of the internal market, on national decisions impacting media pluralism and editorial independence, etc. In case of its adoption, it would establish an authority that would monitor national media regulations and decisions of public authorities of the Member States regarding media regulation.

The legal basis of the initiative of the Commission is Article 114 TFEU, “which provides for the adoption of measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.” Under the pretext of protecting the functioning of the internal market, the European Commission aims to regulate and monitor national media legislations, administrative decisions, and the markets of Member States. It is clear from the goals of EDAP that in this case, the central problem that the regulation is trying to solve is not of an economic nature, but rather protecting values and fundamental rights, such as the pluralism of media and freedom of the press. The legal basis serves the goal of avoiding the problem of not having the competence and majority needed to initiate legislation purely regulating media realities in the Member States — hence it constitutes indirect regulation, i.e. as competence creep. The proposal in question is currently in the first phase of the legislative procedure.

The Problems with Indirect Legislation

The following examples show that the European Commission often chooses legal bases for proposals (especially in the framework of the EDAP package) that do not coincide with the main purposes of the proposals. It often references the protection of the functioning of the internal market to regulate national election processes, media regulation, administrative and other decisions, and generally, questions of democracy, rule of law, and fundamental rights. The EU often has the necessary competence in the field of the functioning of the single market to adopt legal acts with a qualified majority instead of consensus in the Council of the European Union, and also, the Commission can use such legal bases to try to regulate fields where the EU bears no legal competence at all. This way the EU can regulate other fields where the Member States have the right to adopt legislation (indirect legislation), simply through legal acts adopted based on a field where the EU does have competence.

However, it is questionable, whether Member States tend to support such proposals in the Council. As Masters of the Treaties, they are not interested in losing competence in fields where they have not transferred it to the EU. This method therefore presents practical problems, but also theoretical ones as well. Indirect legislation (which is one form of competence creep) does not respect the principle of conferral, the principle of subsidiarity, and the principle of proportionality, as regulated in Article 5 TEU. The EU “shall act only within the limits of competences conferred upon it by the Member States in the Treaties”, in areas not falling within its exclusive competence, “shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States” and “the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”. In the end, the original source of sovereignty is the people of each Member State. If the Commission does not respect the indirect decisions of the peoples of the Member States regarding competences, it breaches the principles of rule of law and the ideal of popular sovereignty, in spite of the fact that the goals of EDAP are important and in the end try to protect democracy and rule of law in the EU. Thus, only one question remains: Can measures that breach the rule of law and the principle of democracy nevertheless safeguard European democracy?

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.

Márton SULYOK: “Seeking Out New Galaxies”? – Essential State Functions and the ‘Regulation Revolution’ in the Context of Digitalization

by admin | Sep 18, 2023 | Future of Europe

On 16 September 2023, I was invited to participate at a workshop organized by colleagues at the University of Szeged, Miskolc, Barcelona and Roma Tor Vergata on Essential State Functions in the Age of Digitalization. The workshop was held as part of the 2023 Annual Reunion of the European Group of Public Law and the European Public Law Organization (EPLO) in Legraina and Sounion in Greece. It is fashionable to talk about the essential functions of the state in the cradle of democracy, only a few kilometers from Athens.

The following post will contain a summary of my legal arguments regarding these essential functions in the context of innovation digitalization and the platform economy. As Prof. Lorenzo Casini asked the audience on the EPLO Plenary session in his contribution: What is the relationship between technological revolution and the state? I will try and answer this question of his in the context of what I call ‘regulation revolution’ with respect to digitalization and then move on my framing of the importance of essential state functions.

What Revolution and Why?

I have recently written on the apparent surge of regulatory impulses on both the national and international levels, trying to respond to the many challenges presented by breaking more and more digital barriers than ever before. Looking at it from the US, many refers to these impulses as the Brussel effect, alluding to the European perception that the EU can remain a global player if it creates regulation in those fields that are technology-intensive, e.g. GDPR, DMA, DSA, e-evidence, AI Act. This, in turn, obviously affects the national levels as well, as they also feel that they have certain essential state functions that need to be shielded through regulation and some other areas where regulation needs to be created (platform regulation, e-administration, judicial use of IT and ADM, law enforcement and ADM – profiling, etc.).

To understand my framing of a ‘regulation revolution’, I would like to start with referring to the concept innovation. Innovation can be understood as “seeking out new galaxies and to boldly go where no man has gone before” – as the famous intro to the TV Series Star Trek echoes in our ears. In our day and age, the online space is one final frontier that we colonize more and more day by day and we break barriers at an unforeseen pace. In the famous approach taken by Austrian-born economist, Wolfgang Schumpeter, innovation can be interpreted as ‘creative destruction’. From this approach, looking at it from a legal and policy point of view, there are three key takeaways.Creative destruction leads to:

deliberate dismantlement of established processes, which presents challenges to the regulatory mindset and established regulatory mechanisms, necessitating the reframing and rethinking of these settled practices
technological disruption, which causes unprecedented rights issues in the context of invocation and digitalization in many sectors, and
‘unintended consequences’, namely e.g. loss of jobs, social inequality, etc.

A. In her suggestively titled article ‘Disruptive Platforms’, Margot Kaminski reviews the work of Orly Lobel [The Equality Machine – Harnessing Digital Technology for a Brighter, More Inclusive Future’ (Public Affairs, 2022)], and sheds light on the disruptiveness of technology in terms of Schumpeter’s creative destruction approach in the light that she argues that the platform economy becomes legally disruptive due to the fact that its flagship companies “tend not to fit neatly into existing legal categories in regulated areas.” Therefore, regulatory reflexes are challenged and instead of existing processes and definitions new ones need to be created in areas like data and privacy protection, competition law, consumer protection, etc.

Monroe E. Price, the namesake of one of the world’s most renowned media law moot court competitions translates this into the terms of social media by stating that the term ‘platform’ becomes a weighted term, “an opportunity for a wide variety of distinct approaches to regulation to be articulated, legislated and implemented”. Its appeal is creating a categorical distinction between production and distribution of content, which opens up the playing field for a variety of regulatory choices necessary “to allow zones of immunity from liability, said to be critical in the development of social media and the Internet.” (Read in full here, on p. 5)

In the above context, we need to be mindful of the co-existence or fusion of public and private power and authority as the role and extent of private power and regulation and their public (administrative and constitutional) law effects might significantly vary in different contexts. With the growing influence of these economic operators (developing AI technologies and platforms) the state should learn to protect those essential state functions (e.g. providing access to justice, remedies) that may exist in parallel with similar ones within the realm of private power. States cannot give these up – if we accept that they are – at least in some of these areas – primary regulators.

B. The deliberate dismantling of existing processes (also called disruption) brings about many rights issues that may need to be handled with new processes introduced through regulation. E.g. the field of intellectual property, art and culture has been completely upset by the appearance of AI, it is no longer just a human rights issue to be tackled by public lawyers, but may lead to conflict reflected in public law processes and consequences, like the use of deepfakes in government communications. (I will not delve into more of these aspects, but you can read interesting articles on these topics here, here and here on this blog.)

C. Finally, we need to address – mostly on the national, state level – the ‘unintended consequences’ of job loss and resulting social inequality through introducing equalizing legislation, labor market regulation, economic regulation. (Many aspects of social policy and legislation, employment policies are shielded by constitutional identity, and therefore these are pertinent to any inquiry regarding the scope and extent of essential state functions.)

Among the many skeptic view on digitalization and automation, a good example could be Bloomberg’s Andreas Kluth, who in 2021 pointed to a sociologically significant danger he then called “the crisis of masculinity”. In his view, increasing robotization (i.e. automation) in many ‘blue collar’ sectors will make it unnecessary to employ the ‘breadwinners’ (mainly men) of the past, which could lead to tensions and a crisis of their own masculinity. The most far-reaching legal consequences of this ‘identity crisis’ could be, for example, a turn to crime or even an increase in domestic violence. No matter if we accept this vision as an unintended social consequence of Schumpeter’s view on innovation, the state will need to address these or others through regulation, as the problems are relevant to the national labor market and the national society’s social welfare and well-being.

What Role and Functions for the State in light of the ‘Regulation Revolution’?

The first question in this realm is, obviously, if the role of the state changes or not. It does. Just as human functions change from production to oversight in many contexts, so will the functions of the state change in the opposite direction, from the observation and oversight of these processes to the production of rules on them. So we arrive and increased regulation. This is also partly due to the fact that the preexisting logics of the economy changed as well. While in the past regulating property and ownership were key factors to leading a successful business venture and to access the market, at present regulation is necessary to facilitate access to shared resources on regulated markets (e.g. AirBnb, Uber/Lyft).

In the context of the platform economy, Vagelis Papakonstantinou addressed the new role of states in his proposed ‘states as platforms’ approach on this blog. He asks the question where do states fit into the conversation about digital platforms? His answer is that states have traditionally been ‘platforms’, as in they served as ‘information intermediaries’ ever since organized society emerged. His arguments: States provide people’s names, nationalities, family and social security status, so many of these different types of information are co-created by states and citizens. Besides creation, states are also involved in information brokering through the safe storage and dissemination of information. I agree with him that this is one of the most important role of the state ‘as a platform’, to ensure the safety and security of citizens’ personal data. Papakonstantinou goes on to argue that information processing has been state-exclusive throughout history, by the state controlling the flow of information. Online platforms have diluted states’ control, taken over parts of it, states are no longer exclusive information brokers. Regardless, his conclusion is that in this sense the old role (and therefore functions) of the state are the new ones as well: states (as platforms) continue to exist as information intermediaries as well as security providers (for the information they mediate), also providing more pathways to citizens to increase their informational footprint in general and on the state itself. He mentions the function of providing security, that needs to remain – in his words – a state monopoly, i.e. understood as an essential state function.

To finish, I would like to argue why we need to ‘seek out new galaxies and boldly go where no man has gone before” to engage in academic exercise regarding the scope and extent of the scope and extent of essential state functions [as understood under Art 4(2) TEU] in age of digitalization, with special focus on the EU:

First of all, the TEU is deliberately silent on the range of these functions (tied to inherent political and constitutional structures of Member States), the list provided in the text is not intended as a closed enumeration, national security and maintaining law and order are mentioned as specific examples. In the context of disruptive technologies that pose risks to both law and order and national security in the current ‘geopolitical chaos’ in and around the EU (e.g. energy crisis, wars, dangers to critical infrastructures, payload attacks, etc.), the regulation preventing these is still and shall primarily remain an essential state function (e.g. cybersecurity)

Essential state functions (and resulting state regulation) should also be considered in areas where these functions should interact with EU regulatory competences (e.g. DSA, DMA, etc.). There is (a currently decreasing) regulatory competition between the Member States and EU levels, i.e. the role of the state changes. With regard to early drafts of the DSA and the DMA, there was initial MS resistance by reason of the drafts not respecting subsidiarity to a satisfactory level and these draft interpreted as the EU rolling over the Member States. In response, parallel regulatory concepts appeared in some Member States (definitions of ‘platforms’, creating legal tools for rights enforcement in state processes outside of the platform, etc.). However, over time the resistance on the part of the Member States against the EU ‘rolling over’ them has been rolled back and another function of the state regulator appeared: orchestration. Coordination between the different levels of the different regulators, a coordination between the multiplicity of authorities inside and outside of the state.

Finally, as argued above, the state regulator may need to face with many unforeseen aspects of social and employment policy and legislation, which fall within the scope of constitutional identity under Article 4(2) TEU in the interpretation of the concept of many national constitutional courts. Therefore these are pertinent to any inquiry regarding the scope and extent of essential state functions as well, since they fall under the same TEU provision and are connected with each other. The problems mentioned in Andreas Kluth’s vision of the ‘crisis of masculinity’ may present as an unintended social consequence of Schumpeter’s view on innovation, and if so, the state will need to address these or others through regulation, as the problems are relevant to the national labor market and the national society’s social welfare and well-being.

The scope and extent of essential state functions is characterized by many as ‘chewed to the bone’ but – in the spirit of the Star Trek intro quoted in the introduction, I find that it is a new galaxy that is worth seeking out, especially because digitalization (in light of the ‘regulation revolution’ presented above) is the new space race and therefore the functions of the state in the age of digitalization represent the new “final frontier”.

Márton Sulyok JD, LLM, PhD is an Asst. Professor (Senior Lecturer) in Constitutional Law and Human Rights at the Institute of Public Law, University of Szeged in Hungary. JD (2007, Szeged), LLM in Anglo-Saxon Law and English Legal Translation (2012, Szeged), PhD in Law and Political Sciences (2017, Szeged). Certified as an American Legal Expert (since 2009) in a joint training program of the University of Toledo (OH, USA) College of Law and the University of Szeged Faculty of Law and Political Sciences. Currently, Prof. Sulyok is the Head of the Public Law Center at Mathias Corvinus Collegium (MCC) in Budapest, Hungary. Previously, he sat on the Management Board of the EU Fundamental Rights Agency (Vienna, 2015-2020), and is now a member of the European Group of Public Law, the Scientific Committee of the EPLO (European Public Law Organization), where he also sits on the Board of Directors.

Árpád LAPU: The Impact and Conclusions of the Conference on the Future of Europe. A Future Gone With the Wind?

by admin | Aug 16, 2023 | Future of Europe

In the last three years, the (latest) Conference on the Future of Europe was many times at the center of European public discourse. The (in the end) one-year-long exercise had an important mission, to look for possible reforms and future avenues for the European Union, with the inclusion of citizens from all Member States. According to the organizers, the European Parliament, the Council of the European Union and the Member States specifically, the European Commission, European citizens, stakeholders, and civil society have all participated. During this one-year sprint of European democracy, there were many meetings, sittings, and sessions and finally, the Executive Board of the Conference has adopted a final report from the outcomes of the whole exercise.

However, not everyone was satisfied with the procedure and the outcome of the Conference. Questions have been raised regarding the selection of citizens, experts, the transparency of the Executive Board, and all in all, the legitimacy of the final report of the Conference. Was it really a truly democratic exercise in spite of its flaws? Even if it was, was it really a success? It is doubtful, despite the fact that many proposals have been indeed implemented out of the 336 pages long final report produced by the Conference since its closure more than a year ago. The president of the European Parliament has announced that her institution will initiate the ordinary revision procedure of the Treaties in line with the procedure regulated by Article 48 TEU, still, the revision of the Treaties has not enjoyed the necessary support from the Member States in the Council until this point.

The question is not merely of theoretical nature, as the AFCO Committee of the European Parliament has recently adopted a report proposing “the creation of a permanent representative and deliberative mechanism called the European Agora” in its Article 17. The committee in question has even proposed the amendment of the 2024 general European Union budget to make such “agorae” possible, namely a permanent participation mechanism of European citizens on the basis of the experience gained during the Conference on the Future of Europe. Was the Conference a good sample for such complementary participatory instruments? Did the Conference have the legitimacy, transparency, and added value necessary for such proposals, or would it be more appropriate to postpone the recommendation of the citizens’ agorae?

An outline of the Conference on the Future of Europe

According to the press, the idea of a new Conference on the Future of Europe was first mentioned by Emanuel Macron, in his speech at Sorbonne in 2017 and was repeated in later articles. Ursula von der Leyen, as president-elect of the Commission has promised in her political guidelines that she will actively work for the Conference on the Future of Europe to start in 2020. The Conference, however, has started later than planned, partially due to the COVID-19 pandemic, but to some degree, to European institutions being hesitant to start the conference in the first place. The European Parliament has already started to hurry the process at the beginning of 2020, but in the end, the Conference was only opened on the 9th of May, 2021 with the inaugural event, even though the Digital Platform and the Executive Board have started their work weeks earlier. The Conference ended on the 9th of May in 2022 and was followed by a feedback event on the 2nd of December, 2022, but there have not been many steps forward with the implementation since.

The goal of the whole exercise according to the political declaration signed by the European Parliament, the Council of the European Union and the European Commission was “launching a series of debates and discussions that will enable people from every corner of Europe to share their ideas to help shape Europe’s future”. In a way, it was meant as a reaction to the chain of crises (further reading on crises here and here) faced by the European Union in the last years and decades and to start a process of reflection on necessary reforms involving citizens. As the political declaration and the Rules of Procedure of the Conference on the Future of Europe have stated, the structure of the Conference has included the Multilingual Digital platform, the European Citizens’ Panels, the Conference Plenary and a supporting secretariat. The digital platform served as a kind of forum, where all self-organized conferences could be uploaded and where the citizens had a possibility to share their views in form of short comments on any European issue. The European citizens panels were composed of altogether 800 citizens, who were divided into 4 panels and had regular meetings. The meetings of the citizens were directed by experts and according to the Rules of Procedure, the data from the digital platform should have been the basis for the discussions. There were 7 Conference Plenaries, usually in the length of two days, where all representatives from all institutions, stakeholders, and citizens’ panels have participated and had a chance to share their views about important European topics usually in the framework of one or two minutes per person.

The most important body, however, was the Executive Board of the whole Conference, which has included decision-makers from the three main European institutions. This body had the strongest power in the structure of the Conference, it was “overseeing” the whole process, it decided the timing of the events, their agenda, procedural steps, questions left open by the Rules of Procedure, and generally, it took every management-decision that had to be taken on a day-to-day basis. In the end, the Conference has adopted a final report, or as Article 18 of the Rules of procedure formulated it, “based on the Conference Plenary’s discussions and proposals, the Executive Board, acting on a consensual basis, shall draw-up a report, in full collaboration and in full transparency with the Conference Plenary (…)”. The final report was adopted during the last meeting of the Conference-Plenary.

Problems of legitimacy, transparency and procedural issues

The Conference had already started with latency not only due to the pandemic, but also there was a tangible hesitation from the side of the Member States as well. Germany and France have made a deal in the beginning that the Conference would start with the German presidency and would end with the French presidency. Even though it did not start during the German presidency, the original plan of a two-year conference was reduced to a one-year event, possibly due to the fact that this way they were still able to close the Conference during the French presidency.

Regarding the legal nature of the Conference, as Evangelos Venizelos has pointed out in his article on Verfassungsblog, the Conference on the Future of Europe had no legal basis, it did not have the institutional character to address the EU’s structural problems, and it is more a “campaign to stimulate public interest for EU politics”, than a deep reform procedure. Its name is “symbolically heavy”, it is a procedure outside of the scope of Article 48 TEU, outside of the procedure for the revision of the treaties.

The Conference had serious issues with regards to transparency and accountability. As mentioned above, the body tasked with every-day management decisions, the Executive Board had the power to decide about the agenda of each part and meeting of the Conference, the length of speaking time, about the organization and the timing of the different bodies, and even the outcome of the Conference. For a body with such strong powers it is curious how it did not have a more transparent way of working as it took all of its decisions behind closed doors. Not to mention membership in the Executive Board: from the European Parliament only three groups were represented with voting rights and four other political groups and non-attached members had no real say regarding the most significant decisions. Such transparency problems have led to further problems, as it is unclear how the citizens were selected on the ground, how the experts were selected – who had an important role in the citizens panels – and how the company that prepared the interim reports from the events of the Conference was selected. Even the final report of the Conference was adopted in a way that certain members of the Executive Board have declared the fact of an existing consensus regarding the content of the report by all institutions, members, representatives, even though there were members of national parliaments contesting the content of the report during the same meeting. One of the political groups has even declared its withdrawal from the Conference on the Future of Europe contesting partially the way of the adoption of the final report and the lack of the possibility to express a minority opinion, but also other issues with the organization of the Conference as well.

There were many topics that the digital platform has included as either an event organized or a reference made by the citizens and yet, they have not become part of the final report. A good example is the topic of constitutional identity, which has not been included in the final report of the Conference, but there were events (see here and here) mentioning it on the digital platform. The Multilingual Digital Platform seemed to play an important role in the whole process of the Conference, as it was supposed to provide the basis for the discussions of the citizens, hence it had an important agenda-setting power. However, the total number of participants registered on the platform after its closure (53 615), as well as the total number of comments (22 242) is drastically low if we consider that the EU has 447,7 million inhabitants.

The idea of trying to improve representative democracy, where the interest of the citizens is conveyed by people selected by the citizens, by selecting citizens who represent their interests seems confusing. The next twist came after this one, the selected citizens have selected citizens among themselves to represent their ideas from the citizens panels in front of the Conference Plenary. An interesting chain of legitimacy, or rather the lack thereof. Were the citizens representatives of the citizens themselves? How could their ideas be followed if they were not elected, are not accountable and have no political responsibility? If they were not representatives of the citizens of the EU, then were they functioning as a continuous, live opinion poll through the whole process? It is arguable, whether the four times 200 selected citizens participating in citizens’ panels would make a functioning sample for a European political opinion poll, but it is surely not representative of the whole EU population, especially with the goal of supporting significant decisions. Furthermore, not all Member States have conducted national citizens’ panels and unfortunately, as Boglárka Bólya has highlighted, some national citizens panels have not been included in the final report of the Conference on grounds unclear for the European public.

The budget usage of the Conference was also not transparent. 22 members of the European Parliament have tabled a written question to the European Commission regarding the use of financial sources of the Conference, but the Commission has only given a vague, general answer without exact figures. In the same answer, the Commission has admitted that the company in charge of selecting the citizens and conducting the interim reports of the Conference was not selected through any kind of tender of procurement.

On the impact of the Conference on the Future of Europe

It has been more than one year since the Conference was closed on the 9th of May. According to its Rules of Procedure, the three institutions are tasked to assess how they can implement the report in the sphere of their own competences. There was an event on the 2nd of December, 2022, where the representatives of the citizens asked questions from the representatives of the three reports on their implementation.

The Council of the European Union has produced an analysis regarding the final report of the Conference, the European Commission has issued a press release regarding its plan on how to follow up on the proposals of the final report. These statements however mostly refer to already existing and planned legislative proposals and procedures and thus it is safe to conclude that the Conference has not made a meaningful impact based on these documents. In the European Parliament, some reports and resolutions (for example here and here) reference the Conference, but usually as a marginal, general argument or reference. The president of the Parliament declared in the closing event of the Conference that the European Parliament will initiate the ordinary legislative procedure in line with Article 48 TEU and it has adopted a resolution on the 9th of June, 2022 intending to initiate the procedure. In spite of this, the Member States did not support this proposal during the trying times of the war in Ukraine, energy crises and other problems, and thus the vote on the initiative has not been on the agenda in the Council for over one year. Therefore, there has been no meaningful progress in the implementation of the recommendations of the Conference on the Future of Europe in 2023.

The Conference on the Future of Europe is gone with the wind

“Burdens are for shoulders strong enough to bear them.” – Goes the famous quote by Margaret Mitchell, the author of Gone with the Wind. The overall experience of the Conference on the Future of Europe has proven that the shoulders that have carried this burden were not strong enough. The Conference did not live up to the expectation of added democratic value offered by permanent participatory mechanisms for democracy in Europe. There have been numerous legitimacy, transparency, legal and democratic deficit-related problems during the whole process. The selection of the citizens and the experts was not transparent; and an opaque political body has manually directed the process and the final report of the conference. It is questionable, whether permanent citizens’ participation is a method of supplementing representative democracy that has enough legitimacy to support democratic decision-making. Furthermore, since the adoption of the final report (which was also not supported by all parties), no real progress has been made to implement the proposals formulated in the reform. This is what happens when the burden is too heavy for the shoulders carrying it. Unfortunately, the Future of Europe might be gone with the wind.

Árpád LAPU: Applications of the Principle of Transparency by and in the European Parliament. A Paradox of Transparent Opacity?

by admin | Aug 14, 2023 | Future of Europe

Transparency is a regularly cited and praised principle (under the rule of law) in the life of any public institution, including the EU institutions. The European Court of Justice, the European Parliament, and the European Ombudsman often assess its realization in practice. Oftentimes other EU institutions, such as the European Parliament (EP) share strong, critical opinions about the transparency of the legislative procedure in the Council of the European Union (Council). It is unusual for these institutions to monitor the transparency of the decision-making of the EP, even though the Parliament is considered a co-legislator – the two being on equal footing in this system. Is the EP a “glass house” and the Council “a black box”? Or do issues of transparency paradoxically surface in the legislative process of the EP as well? This post formulates this argument into the paradox of transparent opacity and explains what the author means by this paradox.

Strong positions on transparency between EU institutions

The EP has often shared its position on the transparency of the workings of the Council and the European Commission. In its report adopted on the 13th of July 2023 regarding public access to documents, the Parliament has called on the Council to “meet in public when it deliberates and votes on a draft legislative act […] [and] the Commission, the Council and the EU agencies and bodies too often insist on in camera meetings without proper justification”. The European Court of Justice has also assessed the situation of the principle of transparency in the Council.

The European Ombudsman has examined the level of transparency in the Council in many reports, among them in the special report OI/2/2017/TE regarding transparency in the decision-making process in the Council. The Ombudsman herein states that for European citizens to be able to practice their democratic rights and participation in democratic processes, legislative deliberations need to be sufficiently transparent. According to the report, the practice of the Council constitutes as maladministration, as it is not possible to record the identity of Member States expressing their positions, while the possibility of accessing documents regarding ongoing legislative procedures is restricted. The European Ombudsman also argues that in comparison to the workings of the EP, the Council is less transparent than the European Parliament, as the Parliament publishes draft reports, amendments, adopted texts, and roll-call votes as a regular practice.

Sometimes the European Commission comes under the scrutiny of the European Ombudsman and the European Parliament as well, but considerably less so than the Council. There are many civil society organizations and individuals filing public access to documents requests and analyzing transparency in the Council and in the Commission. The Ombudsman has asked all three EU institutions to improve their practice regarding the transparency of trialogue negotiations. When it comes to transparency in the legislative process, however, the European Ombudsman rarely addresses the European Parliament. However, this is to some extent understandable due to the origin, purpose, and election (by the Parliament) of the ombudsman. Regardless, the question arises: is everything in order in the European Parliament regarding transparency during the legislative process or do we experience the paradox of ‘transparent opacity’ in the process?

Transparency as a principle in the Treaties

According to Article 10 (3) TEU, every citizen has “the right to participate in the democratic life of the Union” and Article 1 TEU “EU decisions must be taken “as openly and as closely as possible to the citizen”. Article 11 TEU states they need to be able to “make known and publicly exchange their views in all areas of Union action”. Article 15 TFEU states that EU institutions are obliged to act publicly and individuals and natural or legal persons residing or having its registered office in an EU country can access documents.

Members of the European Parliament are directly elected since the adoption of the European Electoral Act in 1976, first applied in 1979. Citizens need to be able to follow the decision-making process in the EU institutions and therefore in the EP as well. This includes the preparation, drafting, negotiating, monitoring, etc. of legal acts and also receiving information on who is selected as vice-president, rapporteur, or shadow-rapporteur, who is able to influence decisions and the positions of political groups during the decision-making process. The citizens are represented by the European Parliament (Article 14 TEU), which also leads to the conclusion that they need to be able to get access to information about what happens in the European Parliament. According to the Policy Department for Citizens’ Rights and Constitutional Affairs of the European Parliament, “transparency requires the disclosure of information on policy-making”, it is necessary to build accountability and trust in decision-makers. “The notion of integrity of public institutions implies the use of their powers for officially authorised and publicly justified purposes”. Open decision-making is necessary for good administration and good governance, for independent and accountable institutions. Transparency, therefore can be supported by many, further arguments.

As Masters of the Treaties, the Member States also have the right to be informed about the decision-making process in the EU institutions, since the decisions of the European Parliament can influence the whole institutional system of the EU. It may be derived from different national (i.e. Member State) laws (incorporating the principle of transparency through the rule of law) and the treaties as well on the same basis that national parliaments need to be able to monitor the work of the European Parliament. Thus, the rule of law (including transparency) applies to the EU institutions as well. The principle of equality of Member States before the Treaties and the principle of sincere cooperation (Article 4 TEU) can also be interpreted as grounds for the obligation of EU institutions to work transparently, especially where Member States are not represented in the institutions.

Transparency (transparent opacity) as a paradox in the European Parliament

To assess the European Parliament’s level of transparency, it is necessary to describe its organizational structure. Like with other parliaments, the operation and structure of the European Parliament is also divided mostly into committee meetings and plenary sessions. Reports are prepared in the committees, which are organized thematically, and after their adoption on the committee level, they are finally adopted in the plenary session. In the plenary, all MEPs may participate with a right to vote, may speak, and table amendments along with other MEPs, while in committees usually only the members of the committee may speak and vote (although the right to vote is transferable). MEPs not part of a certain committee can only sign amendments along with members of that committee.

Resolutions and reports adopted by the plenary are positions of the European Parliament on certain issues, or in legislative procedures, legislative positions. Reports are usually prepared by committees and their adoption. Reaching the plenary phase may take longer, while resolutions may be prepared hastily during or shortly before a plenary session, without the involvement of a committee. Resolutions may be tabled by a certain number of members, but they have a reasonably higher chance of success if tabled by a political group, especially if a larger group in a stronger position tables them. Committee meetings and plenary sessions are accessible via live feed or on the official website of the European Parliament. At times, some committee meetings or other meetings on the committee level are organized in camera, without the participation of the public.

It becomes evident after a quick look at the organigram of the Parliament that there must be a significant agenda-setting power hidden somewhere: the power to decide what will be included in the agenda of committee meetings or plenary sessions. A following question might be who decides about the content of the draft proposals and who has the most influence over the texts.

The agenda of committee meetings is set by the coordinator’s meeting of each committee, where the political groups delegate their members. This is the body that has most of the powers on committee level and decides about

the agenda of committee meetings,
who can become rapporteur or be accepted as shadow rapporteur of an opinion,
when and on what topic can a hearing be organized,
who can be invited as experts, or even
when to postpone a meeting.

It is safe to state that this is a body with strong powers, however, it holds all meetings in camera. The public has no possibility to find out the justification for why a certain report has ended up in which group, why a certain person has been chosen as rapporteur, or why a certain report is more urgent than another. On top of this, the negotiations between the rapporteur and shadow rapporteurs are also organized behind closed doors, even though this is where political groups share their positions and this is where the most influential changes to the draft reports are decided. Committee members may table amendments to the draft report, but the so-called ‘compromise amendments’, which either incorporate most amendments or force them to fall, (i.e. predetermining the result of a committee vote) are decided with the exclusion of the public (as non-public informal committee-related activities).

The situation is not much different on the plenary level. The Conference of Presidents, incorporating the President of the European Parliament and the heads of the political groups, also holds all meetings in camera. This is the single most important body in the structure of the European Parliament. This is where decisions about the plenary agenda, urgent requests, allowing certain reports to be drafted, and fundamentally the most important decisions of the house on the highest level are met. The highest-level political deals are struck in this body.

An argument raised by some against the lack of transparency is the possibility of making political deals, connecting files and decisions that would not be connected normally in order to gain negotiating leverage. If these bodies have such strong competencies and the citizens have the right to follow the decision-making process of the EU institutions, why is it not possible to broadcast these meetings online, as it is done with committee meetings and plenary sessions? There are further decisive decision-making bodies meetings in camera, such as the Bureau, the college of quaestors, or semi-official bodies under and around committee level (for example the working group on the Rules of Procedure of the European Parliament), not to mention unofficial groupings of MEPs, like ‘friendship groups’. The work of the Legal Service of the European Parliament is also not transparent to the public, even though they give advice to the President and the Committee Chairs and to the political bodies on substantial issues, often influencing the future of a legislative file on the agenda.

Transparent opacity as a layered paradox – Issues for the Future

The Conference on the Future of Europe, organized by the Commission, Council, and Parliament, and favored by the Parliament in resolutions, has also organized a lot of meetings in camera. The conference had a so-called digital platform, a plenary session, working groups, and citizens panels, but the most important decisions were met in the Executive Body. The Executive Body has adopted the Rules of Procedure of the Conference, has decided about the everyday workings of the Conference, directing the whole exercise. It has decided on the selection of the members of the Conference bodies, the main topics, dates, and format of sessions, basically keeping the Conference under manual control. Its members were political leaders from all three institutions. In spite of this, only the other bodies were working transparently, like the Conference Plenary, where members usually had only one minute to discuss topics regarding the future of the whole integration. What was the reason for the meetings of the Executive Body conducted in camera and how has it influenced the outcome of the Conference? This information is important, as in the final report there are substantive proposals for the reform of the EU, even proposing the modification of the Treaties.

Another interesting transparency issue is the application (to the EP) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission documents. However, due to the nature of the topic, this will need further, future assessment.

Furthermore, there are reforms underway currently in the EU institutions in general as well as in the European Parliament. The president of the Parliament has published a 14-point plan, where proposals regarding transparency seem to be playing a key role. The modifications are still in progress, involving the so-called “Transparency Register”, applied by the European Parliament, European Commission, and the Council, in which organizations striving to influence the work of the institutions need to register along with a requirement that meetings between certain members of the institutions and the interest representatives need to be published. Recent events – like the so-called ‘Quatargate scandal’ also mentioned in the introduction – have shown that there is a lack of transparency in this field as well.

Unraveling the paradox

The principle of transparency, referenced in numerous Parliament resolutions and reports is an obligation and principle, which is not only important in the workings of the Council, but in the functioning of the European Parliament as well. As the European Ombudsman has described the content of this principle, “it is related to the capacity of EU citizens to know, during the process, how any particular legislative process is progressing, to know the various options that are being discussed and which positions are being promoted or opposed (…). Ensuring that EU citizens are kept informed on the progress of legislation is not simply something to be desired; rather, it is a legal requirement. This kind of transparency is meant to apply during the entire legislative process, and not simply retrospectively after the particular legislative matter has been concluded. This is crucial for citizens to be able to enjoy their treaty-based right to participate in the democratic life of the Union.”

Applying this standard to assess the transparency of the European Parliament, we can establish that citizens have no real possibility to follow:

how the content of legislative reports are progressing in negotiations between groups on the committee level,
where their content is mostly influenced,
why a certain political group has received rapporteurship of a certain report, or
which groups and for what reasons have supported agenda-setting decisions.

It is necessary to review the norms regarding the transparent functioning of the European Parliament in order to avoid the currently apparent paradox of what I called ‘transparent opacity’, by which I mean the prima facie visible lack of transparency that seems to be the direct result of deliberate institutional and procedural design, as evidenced by the examples presented.

As the European Ombudsman – elected and monitored by the European Parliament – deals mostly with cases regarding other institutions, the Member States’ national parliaments as directly elected legislative bodies could help to introduce reforms on the transparency of the legislative process and could propose reforms to enhance relevant transparency, demanding political groups to publish the justification of the decisions and the positions of political groups in the bodies meeting behind closed doors (in camera), deciding about the agenda and the content of documents. Member States have a clear role in controlling the functioning of the EU according to their position in the EU’s legal system and there seems to be room for growth in the field of transparency.

Such reforms would help to push the “glass house” out of the “black box”-like paradox of ‘transparent opacity’ and open its windows to the public.

Dalma MEDVEGY: An Identity Formed by Crises. When Is It Time for the Revision of EU Treaties?

by admin | Aug 9, 2023 | Future of Europe

In recent years, both the world and the European Union have had to face numerous challenges. However, the Founding Treaties which form the basis of the Union have not been reformed in the past 14 years. The last amendment of the Treaties took place with the Lisbon Treaty, which came into force in 2009, leaving treaty reform off the table in the last fourteen years. Nevertheless, in recent times, some leaders of the EU have raised their voices for the revision of the EU Treaties. Now, the question arises whether the Union had the necessary competences to overcome the crises, and if not, whether it is justified to amend the Treaties and confer further competences from the Member States towards the European Union in order to have a broader scope of competence when the Union has to face challenges and overcome them. However, it must also be taken into account that these newly transferred competences would not only be exercised by the Union during times of crises but also in everyday matters, which are unrelated to the previous challenges that initiated the modification of the Treaties.

European Commission President Ursula von der Leyen expressed her support for a constitutional convention to reform the EU Treaties during her State of the Union speech in 2022. We could say that there is nothing new under the sun, as the failed predecessor of the Lisbon Treaty (the so-called Constitutional Treaty) was drafted by a similar Convention.

In her present speech, President Leyen highlighted the need to take EU reform seriously and proposed the convening of a European Convention in order to achieve genuine renewal of the Union. The European Convention would represent the initial step in a treaty amendment process, although there is no consensus among the Member States regarding its necessity.

Firstly, let us assess the crises that the Union has had to face in recent years in order to examine which areas of competence were impacted by each challenge and whether the Union was able to effectively address the situation with its competences. Since 2009, the EU was managing one challenge after another, such as the massive refugee influx, global warming, the COVID-19 pandemic, and the Russia-Ukraine war.

One of the above-mentioned crises, the COVID-19 pandemic has deeply impacted the lives of every citizen, necessitating a unified and prompt response for its swift and effective containment. However, Article 5 of the Treaty on European Union (TEU) states, “Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.” The issue in this situation arose from the fact that the Union has only a supporting competence in the field of healthcare, which means that any decision made by the EU serves solely to support the national policies established in the Member States, rather than replacing them. It is set out in Article 6 (a) of the Treaty on the Functioning of the European Union (TFEU). Although Article 168 TFEU allows this competence to be extended to a shared competence in the name of “a high level of human health protection”. The COVID-19 pandemic has raised several questions in EU law concerning the field of healthcare. The right to free movement is one of the four pillars of the single market. Restricting this right is subject to conditions related to public policy, public security, or public health. The pandemic falls under the latter category. Therefore, the Union exercised competence in this area during this time. Still, the Union did not have unlimited competence; for example, the regulation concerning the Digital Green Passport had to comply with the requirements of necessity and proportionality, as well as non-discrimination. In this case, it can be demonstrated that, in order to ensure a fundamental EU right, the Union exercised competence in areas that affect healthcare, which originally should be just supported by EU regulations. The overlapping of EU and Member State competences, however, can pose challenges in such cases.

Within the supporting competence category, it is difficult to ascertain whether the Union fulfilled the task of handling the situation adequately or not. As a result, the Union conducted a survey following the decline of the pandemic, in which people were asked about their satisfaction with the management of the COVID-19 crisis. The survey revealed that only 42% of those who were aware of the EU’s actions expressed satisfaction. Furthermore, 69% of respondents stated that they wished the Union had played a stronger role in fighting against the pandemic and had more powers to implement necessary measures. Even former German Chancellor Angela Merkel said she believed that the EU is in need of more competences in the area of health, which can be achieved through treaty amendment.

Another crisis that emerged was the migration flow into Europe. The Arab Spring began over 10 years ago, resulting in a significant number of refugees arriving within the Union’s borders.

The legal basis for addressing this challenge can be found in Article 79 (1) of the TFEU, which states “The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings”.

However, several factors contributed to the complexity of this issue. Firstly, in this area, Member States consider the refugee’s security and employment issues as aspects of integration. If these areas of national competence are involved, then the Union’s actions also have an impact on them, where national policies and competences come to the forefront. Therefore, we cannot speak of a fully conferred competence in this case, where the Union cannot have competence over any issue. If it concerns an area related to integration, the Union must respect national competences as well. Secondly, Article 4 (2) of the TFEU lists the areas where competence is shared between the Union and the Member States. Point (j) in this paragraph specifically mentions the area of freedom, security, and justice. It is undeniable that the Union’s competence regarding migration issues falls within this category. Therefore, the competence of the Union on issues related to migration flows is a harmonizing competence. On the other hand, the ‘other 4(2)’, namely that of the TEU, sets forth that the EU should respect essential state functions, especially national security. Given this provision, in areas, where e.g. migration and national security overlap, there is an inherent insecurity about whether this is indeed a harmonizing competence (a conferred power based on Article 5 TEU) or not, and something that falls within the purview of Article 4(2) TEU, therefore left undisturbed by the integration (respected by the EU).

The Institutions of the EU can establish, however, minimum common rules through directives, which Member States are obligated to implement. On the other hand, the Member States have the authority to enact legislation on matters not addressed by the directives and may deviate from the common rules to the extent permitted by the directives. This is especially true in areas falling under the scope of Article 4(2) TEU.

Article 79 (2) TFEU lists the areas in which the European Parliament and the Council can adopt measures in ordinary legislative procedure regarding questions of migration, such as the conditions of entry and residence or the combating of trafficking in persons. The question arises whether this is sufficient to address future situations, including the influx of refugees resulting from the Russian-Ukrainian war. So far, the EU introduced the system of temporary protection with the aim of alleviating the pressure on national asylum systems and enabling individuals who are forced to leave their place of residence to have harmonized rights throughout the Union. Among these rights are for example the right of residence and the right to access medical care. Further actions in the future can question whether the EU has enough competence in this area to effectively tackle such crises, as more than 4 million Ukrainian refugees have already been granted temporary protection in the EU, although we have to account for more than 8 million refugees throughout Europe, according to the United Nations data.

Despite all of this, it remains uncertain whether the Member States and their citizens recognize the need for reforming the EU Treaties based on the experience of the last few years. Based on the survey conducted by Eurobarometer, which relied on data collected in the autumn of 2020 and was published in the spring of 2021, it is revealed that approximately two-thirds of Europeans believe that their country’s EU membership is a good thing and they also support the idea of the European Union having more competences in dealing with crises such as the above-mentioned areas.

Furthermore, an extensive agenda for the revision the EU treaties has its risks. Indeed, ideological differences can be identified between those who advocate for the preservation of (or increased emphasis on) national sovereignty as the foundation of the integration (with its inherent limits) and the proponents of a strongly centralized and unified, federal Europe.

At the Conference on the Future of Europe, the need for the revision of Treaties emerged as a result of the proposals put forward. In response to this, the governments of 13 Member States published a letter expressing their opposing views on the need for treaty amendments. They explained that there is no rush for changes as the Union has already responded and taken appropriate measures to address the crises. Among these countries were Bulgaria, Czech Republic, Denmark, Estonia, Finland and Latvia. Contrary to this, 6 Member States, such as Belgium, Germany, and Italy, responded by stating their openness to required treaty amendments.

In the future, the European Union is likely to face numerous new further crises that were not foreseen during the formulation of the Lisbon Treaty. One thing is certain: there is a need to ‘adapt and survive’. It is significant for the Union to find the most effective way to address crises (which will in turn form and shape its identity), whether through the revision of the Treaties or within the existing legal framework by adopting new policies or adjusting existing ones. The key is to decide on what identity is most desirable for the EU.

Dalma Medvegy is a fourth year undergraduate law student at the University of Szeged, Hungary, Faculty of Law and Political Sciences, holding a talent scholarship from the Aurum Foundation. She is Vice President in charge of Academic Activities at ELSA Szeged in the academic year of 2022/2023, Member of the International and EU Environmental Law Research Group at the University of Szeged, Faculty of Law and Political Sciences. Her research focuses on the revision of EU treaties and the future of Europe.

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