Introduction The operations of the European Union are hinged on its supranational institutions and progressive agreements among its 28 member countries. Since its inception in the mid 1950s, this organisation has witnessed significant growths and the consequent adoption of various treaties all aimed at rearranging the constitutional and legislative frameworks among its major institutions. The latest of such treaties was the Treaty of Lisbon adopted in 2007 and one which accorded the European parliament to a higher legislative and constitutional level1.
As has been the case with most EU Treaties, at the centre stage of the Treaty of Lisbon was the distribution of constitutional and legislative powers among key institutions of the EU (the European Parliament, the Council of Ministers/ Council, the European Commission)2. There are however major debates concerning the extent to which this treaty created tangible changes to the legislative and constitutional powers of these institutions.
This paper seeks to give a critical discussion on the constitutional and legislative power balance between various institutions of the European Union in the Post Lisbon period through a comparative analysis of such a power balance during the pre-Lisbon and post-Lisbon periods. Despite the seemingly major powers given to the parliament, the Council still remains partly more powerful than the parliament and the European Commission.
An Overview of the Pre-Lisbon Functionality of EU Institutions The pre-Lisbon European Union’s institutional Framework was born out of a political process pitting member states hence the seemingly complex decision making and governance system characterising this framework3. At the centre stage of these revisions are two contradicting views; the federal state perspective and the “sovereignst” perspective-which strives to create an intergovernmental governance and decision making framework4. These conflicting ideologies have at times created wide power imbalances between the above three institutions5.
Under the Treaty of the European Community, the European Commission; the independent body representing the interests of Europe, was given the power and authority to make policy and legislative proposals. This institution was however not constitutionally mandated to make a final decision on the adoption of those legal and policy proposals. The role of deliberating on the adoption of those policy proposals was rather given to the Council as the independent intergovernmental body representing EU member countries.
The Council would oversee the adoption of those legislative and policy proposals through simple majority voting and in collaboration with the European Parliament (the distinct body representing members of the European population)6. The Council largely remained one of the most powerful organs of the EU in the pre-Lisbon period. Initially; the Council would solely adopt legislative proposals ranging from such items as directives, regulations, and even final decisions. This made it a supreme institution, enjoying both legislative and executive powers.
It would at times serve as the sole legislator with the European Parliament serving as a mere deliberative organ through which certain policy and legislative proposals could be discussed before being adopted by the Council7. Subsequent Treaties did however strengthen Parliament’s position as a legislative organ thus partly watering down the single legislative powers of the Council. This is perhaps demonstrated by the adoption of a co-decision procedure in 1992 which place the parliament at par with the Council in certain matters of legislative importance.
The Pre-Lisbon European legal order therefore placed immense powers on the Council, followed by the parliament, and lastly by the Commission8. The Post-Lisbon EU Institutional Framework and Changes brought by the Treaty of Lisbon According to the new Article four of the Treaty of the European Union, the post-Lisbon EU comprises of the following institutions: the European Parliament, the European Council, the Council, the European Commission, the Court of Justice of the European Union, the Court of Auditors and the Central Bank.
The Treaty of Lisbon thus did elevated the European Council and the European Central Bank to the ranks of formal institutions of the Union without making substantial changes to the legal and constitutional mandates of these two institutions9. The European Council does not enjoy any legislative powers in the post-Lisbon institutional framework although this council was still given a non-legislative mandate to make some legally binding decisions. This largely implies that this organ still exercises some limited sort of constitutional power over the other institutions though this power does not include legislation in the post-Lisbon period.
However its inability to actively take part in legislative matters still places it below the other three institutions in as far as power balance within the EU is concerned10. Consistent with the seemingly minor changes enacted in respect to the roles and powers of the European Council, the Treaty of Lisbon consequently made minor amendments to the role and functionality of the Council.
In regard to this, this Treaty did spell in Article 16(1), that “The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions”. The Council was also authorised to take up policy making and coordination functions in line with previous Treaties. Save for this single rephrasing, the Treaty of Lisbon does not introduce other significant changes in as afar as the roles and powers of the Council are concerned11. On the role, functionality and composition of the European parliament, the Treaty of Lisbon made symbolic change in relation to those members this parliament was to represent.
This included a revision from the previous version (representatives of the peoples of the states brought together in the Union) to a new version viewing members of this parliament as “representatives of the Union’s citizens”12. Additionally, this Treaty made various changes and rephrasing on the initial legislative roles and powers of parliament vis avis those of the Council. Critical among this was the insertion of a clearer provision detailing the legislative powers of the Parliament and the Council. In regard to this, the European Parliament can, jointly with the Council, excersice legislative and budgetary functions.
It shall exercise functions of political control and consultation as laid down in the Treaties and elect the president of the European Commission. In addition to this, the Lisbon Treaty made a major change on the co-decision legislation method by extending its applicability and consequently giving the Parliament identical powers to those exercised by the council. In the post-Lisbon period therefore, the Parliament and the Council are expected to jointly agree before adopting any legislative or policy proposal from the Commission under what was originally referred to as the ordinary legislative procedure13.
On the other hand, the post Lisbon era has not seen major emphases on the constitutional legislative roles of the European Commission. This Treaty only affirmed the Commission’s powers to make policy and legislative initiatives or proposals as the supreme executive arm of the Union14. Analysis of Power Balance between EU Institutions in the Post-Lisbon Period Based on the above overview of the pre and post-Lisbon institutional frameworks, it is evident that this treaty did create with it an aspect of institutional change at least for the first time since the adoption of the Treaty of the European Union.
As noted in the introductory section of this paper, the European parliament was one of the major institutions affected by the Treaty of Lisbon15. The parliament now enjoys a wider mandate in as far as its legislative and supervisory roles are concerned. In addition to this, the Treaty of Lisbon has established this institution, jointly with the Council, as a co-legislator. It is however worth noting that, as noted above, the co-decision procedure was initially adopted in 1992 and the 2007 Lisbon Treaty merely changed it to the “ordinary legislative procedure” without largely changing the legislative roles of the two institutions.
However, in the Post-Lisbon era, the parliament enjoys extended powers to include legislative agendas in such new fields as immigration and justice within the Union. In addition to this is also the retention of the right of approval by parliament especially when it comes to those matters adopted under the “special legislative procedures”. The parliament can also legislate on international matters; a role not played by the other two institutions16.
The European parliament can thus carry out an approval of, and equally be consulted and informed about all matters on EU’s agreements and associations as adopted under special or ordinary legislations17. The treaty of Lisbon consequently saw the strengthening of parliament’s powers on the European Union Budgetary process. As a result of this, the European parliament now has equal powers with the Council in matter so budgetary importance. This treaty thus abolished previous barriers limiting the parliament’s budgetary powers.
The power of this institution was initially limited to the approval of “non-compulsory expenditure” only. It can presently approve “compulsory expenditures”, thereby changing form the initial mandate, where it could only propose changes to all ammeters related to this form of expenditure18. In the post-Lisbon period, the European parliament still boasts strong political powers and control over the European Comission, as demonstrated by its power to elect the president of the Commission19. It can also confirm the legal existence of the European Commission as an institution and consequently revise the original treaties of the EU.
The parliament thus presently enjoys more constitutional powers over the Commission and the Union as whole when compared to the Council. But, we cannot ignore the fact these powers cannot be taken as implying a shift of power balance from the Council to the parliament since the Council still retains its legislative powers20. Therefore, the Post-Lisbon era has not automatically signalled a complete shift of legislative and supervisory powers to the parliament because there are still major provisions limiting its legislative powers.
A good example of such a limitation applies in the adoption of European Union measures within the area of social protection or social security. Here, the European parliament is only allowed to play a consultative role with the final legislative power solely resting on the hands of the Council21. The post-Lisbon period has therefore simply seen a consolidation of the role and powers of parliament as a co-legislator. The roles and powers of the commission still remain identical. Its power over policy and legislative initiatives however still makes it a little bit powerful since it can still influence EU policies and legislation.
However, policy initiatives from this commission can still be amended and have to be approved by the Council and the Parliament. The Commission thus still remains relatively less powerful than the Council and the Parliament at least when it comes to legislative roles22. Conclusion The Pre-Lisbon constitutional dispensation was characterised by a highly and relatively powerful Council and parliament respectively. These two institutions could jointly adopt policy and legislative proposals from the European Commission.
The same is more or less true with the Post-Lisbon institutional framework, though the parliament has seen considerable increases in its budgetary approval and supervisory powers. These power increases partly provide a power balance between it and the Council at least in the approval of the Union’s budgetary estimates. However, the Council still remains a supreme legislative organ since it still enjoys full discretion over the legislation of sensitive issues, a function that cannot be exercised by the parliament despite its co-decision powers under the Treaty of Lisbon. Bibliography BLANKE, H-J, and MANGIAMELI,S.
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