Appointing and Censuring the European Commission



Appointing and Censuring the European Commission :

The Adaptation of Parliamentary Institutions

to the Community Context

Paul Magnette(

Abstract : The parliamentary model which is at the heart of European civic cultures has deeply influenced “Constitutional reforms” in the European Community. But the EC is not a Parliamentary state and the transplant of national institutions in its own political context gives rise to hybrid practices.

This paper examines this process of hybridation, and shows that new practices of appointment and censure are emerging in the Community, mixing classic parliamentary institutions with the crucial features of the EC itself. Focusing on recent tensions between the Council, the Commission and the EP, it shows that they are governed by national divisions, technocratic and legal reasoning rather than by classic majoritarian attitudes.

It concludes that, while this new model of accountability might prove efficient in terms of interinstitutional controls, it remains symbolically inefficient, because it does not help citizens understand and accept the Community institutional model.

I Introduction

Until the time of the Maastricht treaty, the question of the « democratic deficit » of the European Community seemed to have obvious solutions. As democracy had been synonymous with parliamentary politics for two centuries in Europe, the Community could only be democratic, or so it was said, if its Parliament became central in the political system and imported its majoritarian style within Community politics. This had been the major argument of most political scientists and legal scholars in the seventies, echoed by the European Parliament and the Court of Justice in the eighties. It had been so convincing that, when they changed their practice, and when they revised the treaties, European actors seemed to be incapable of conceiving another model than the parliamentary one (Dehousse 1995).

After the Maastricht treaty, this argument lost part of its strength. A paradox indeed needed to be explained : though the powers of the European Parliament had been dramatically increased, and in spite of its growing influence on EC policies, public opinion has continued to see the Community as a non-democratic set of institutions and the Parliament as a distant, powerless, and poorly representative organ. Political scientists and legal scholars then partly changed their mind. Most of them argued that the parliamentary features of the Community, though they now were facts and could not be reversed, would not, by themselves, lead citizens to see it as a fully-fledged democratic system. Alternative, or complementary, modes of democratic legitimation needed to be found.

Two major directions have inspired the authors of the treaties since then. On the one hand, some argued that, being an intergovernmental system in large sectors, the Union should use the resources of national parliaments. The role of national assemblies, long considered as extraneous to the European political system, has since then been recognised as a possible element of democratic legitimation of the European Union in the treaties of Maastricht, Amsterdam and Nice — actually in annexed declarations and Protocols, revealing that it remains difficult to integrate them in the treaties themselves. On the other hand, others argued that the « regulatory nature » of the Community contained its own « substitute elements of democratic legitimation » (Héritier 1999). Majoritarian instruments of political control are not adapted, the argument goes on, to the complex nature of the system. More diffuse modes of accountability — through the generalisation of transparency, reason giving, access to documents, judicial controls… — can thus be seen as an appropriate answer to the accountability deficit of the Community (Majone 1996). Here too, innovations of the treaties of Maastricht and Amsterdam — petition and ombudsman, transparency and access to documents...  — give substance to this alternative mode of democratic legitimation (Magnette 1998).

Competing modes of legitimation now coexist in the epistemic and political communities that make the constitutional policies of the European Union (Craig 1999), and contribute to the growing complexity of the political system. After Amsterdam, the constitutional structure of the European Union presents, more than ever, the image of a « Europe of bits and pieces » (Curtin 1993). Submitted to various influences, the Community system evolves along diverging lines.

Different interpretations of these trends can be elaborated and different prospective scenarios are possible. One can imagine that these modes of legitimation will come into conflict and that the permanent competition between parliamentary and non-parliamentary, national and supranational, modes of control will deepen rather than remedy the democratic deficit of the Union. The heterogeneity might also, however, become harmonious : the constitution might clarify which sectors are submitted to which modes of control, or the practice could evolve towards coherence.

The hypothesis examined in this article is a third one : looking at recent institutional tensions, and replacing them in a retrospective analysis, we argue that parliamentary and non-parliamentary modes of democratic legitimation are increasingly influencing each other, and leading, through a process of gradual fusion, to a new style of parliamentary politics. The formal parliamentary framework built through successive revisions of the treaties is, in practice, interpreted along intergovernmental and technocratic lines, giving birth to a new mode of parliamentary praxis. Though it might be efficient in terms of inter-institutional controls, this practice remains very complex and contrasts with the classic models citizens have in mind. It lacks, in other words, "symbolic efficiency", because it proves unable to help citizen understand, and accept the EU institutional system.

The rest of this article will examine this hypothesis, focusing on the relationship between the Commission, the Council and the Parliament and the procedures of appointment and censure. True, these are certainly not the only, and probably not the most important, dimensions of inter-institutional relations. Parliamentary committees, oral and written questions, discussions on the budget and the legislation, informal contacts between members of the institutions… are certainly the most efficient instruments used by MEPs to scrutinise the Commission (Corbett 1998). But the procedures of appointment and censure, along with some legislative discussions which are covered by the media constitute, for the largest segments of European public opinions, the visible part of the iceberg.

Part II examines the genesis of these procedures. It is indeed important, before looking at the actual practice, to understand how and why these procedures were conceived, to measure the weight of « path dependence » in constitutional changes and their consequences on political actions. Part III and IV moves the analysis on the practice of these procedures from their inception, and tries to show how parliamentary, intergovernmental and technocratic logics interfere. In a final part, we conclude that though this synthetic model might prove efficient, in terms of controls as well as of decision-making capacities, it falls short of offering a valuable substitute to classic modes of legitimation.

II The mirage of Community parliamentarism :

political change and constitutional nominalism

Inside the institutional triangle of the Community, there has always been a « special relationship » in the Parliament-Commission pair. Compared to the Council of Ministers, these two organs appeared as « supranational institutions » dedicated to the promotion of the general interest governments would be unable, by themselves, to reach. The fact that the Parliament was said to “consist of representatives of the peoples of the States brought together in the Community » (art. 189, ex-137 EC) and not of « representatives of the people of the Community » did not alter this image, since the Assembly had decided to change its name for the more appealing « European Parliament » early in the seventies.

Stuck between the Council and the Commission, most MEPs long conceived of themselves as modern equivalent of those MPs who, in heroic times, tried to use the Cabinet to strengthen their weight against the other holder of the sovereign power, the King. They were encouraged in this attitude by the fact that the legal relationship between the three organs had, consciously or not, been copied on the dualist model of nineteenth century parliamentarism : the Council was the major decision-making organ, like the King in the Ancien régime, but its efficiency depended on the « advices » (here initiatives) it received from the Cabinet (here Commission) ; the Cabinet was appointed by the King (here Council) but with an increasing influence of the Parliament, who could censure it.

The similarity between the constitutional evolution of the Community and the classic Westminster history of parliamentarism is equally striking[1]. This is partly due to the initial likeness : a comparable genetic card gave rise to comparable genesis. It is also partly due to the strength of symbols. When MEPs first « appointed » the Commission they did it to take to themselves the prestige of historic parliamentarism. The weight of political traditions finally explains this « path dependence » : having the history of assemblies in mind, most MEPs naturally refer to this experience to determine their attitudes vis-à-vis the Commission, even if they know that it is not a government. MEPs seem to have understood the major lesson of parliamentary history : the most an executive is controlled, the most powerful it is, particularly in its relationship with the other executive (here the Council). MEPs and the Commission have generally, let alone times of tensions, understood that they could reinforce each other vis-à-vis the Council (i.e the governments of the Member states and their intergovernmental reflexes) using classic parliamentary tools.

Like primitive parliaments, the European assembly was initially confined to a power of deliberation deprived of legal constraint, and could only censure one part of the executive (the Commission) in very limited circumstances. Given the need for a two-thirds majority and the absence of a clear political majority in a still primarily international parliament, censure could not be used to express political disagreement with the « cabinet ». It was rather designed as a collective impeachment procedure, that could only be used to sanction eventual mistakes, completing judicial instruments created to control the legality of the Commission's acts. Like primitive assemblies, MEPs however understood that legal distinctions between legislative and budgetary powers and the power to control executive organs are meaningless in practice. Very early in the history of the Community (actually already in the framework of the ECSC), the Assembly used the censure to get information from the High Authority (Kapteyn 1962) : the possession of sound knowledge of the facts is indeed the sine qua non of any parliamentary control. Later on, the EP adopted the traditions of committees, oral and written questions, petitions... to improve its information. Like primitive parliaments again, the EP proved increasingly able to use these powers designed to control the executive a posteriori in order to influence it a priori : though legislative procedures still reduce the EP to a reactive role, given its absence of free power of initiative, MEPs have become able to initiate new policies or amend existing ones, mainly through the use of budgetary powers which were initially conceived as instruments of ex-post control (Costa 1999). Finally, like primitive parliaments, the EP managed to make these inventions last, through their inscription into the « constitution » of the Community. Most elements of the parliamentary model of the EC have followed the same dynamic pattern : first invented by MEPs inspired by national traditions, they were formalised in the EP's Rules of Procedure and recognised by the other institutions in inter-institutional agreements, before being formally included in the treaty during intergovernmental conferences. The fact that Member states have accepted all the customary practices created by the EP to strengthen its own position in the political system makes plain that national leaders are also deeply influenced by this parliamentary path dependence.

This success story has given hope to those who believe in the federal future of the Community. If the EP has gained these powers, if Member states have accepted them though some of them have been very reluctant, why should the following stages of the Community's constitutional history not follow the classic parliamentary pattern ? The competencies of the Union which remain out of the EP's reach might be progressively brought back to the Community ; the co-decision might be expanded to all legislative areas and the constitutional procedure might be submitted to a form of co-decision limiting (at least for some secondary aspects) the intervention of national organs of ratification ; the Commission might receive larger executive tasks from the Council, which would in turn be reduced to a sort of upper chamber. Some of these trends have been figured at Maastricht and Amsterdam. And if polities create politics, European parties could emerge and structure the parliamentary life of the Community.

This has been the constant doctrine of the majority of the EP, formally expressed in its successive projects of constitution. And some months before the last European elections, Jacques Delors was still suggesting that each EP group might propose its candidate for the Presidency of the Commission, openly hoping that this would give the EP majoritarian features and create a deeper solidarity between the EP and the Commission at the expense of the Council[2]. Half a century after the creation of the Community model, there still seemed to be no alternative to the “majoritarian avenue”.

The analysis of the practice of these evolutions however cast doubt on this optimistic prospective. Firstly because, as we will see, the intergovernmental factor remains crucial, and even plays a substantial role within the European Parliament itself. Secondly because Community parliamentarism remains deeply affected by the technocratic origins of its institutions. A short sentence lost in the conclusions of Romano Prodi's speech before the European Parliament on 14th September 1999, the day before the EP's final vote on the new Commission, recalls the ambivalent nature of Community parliamentarism : « action at the European level often makes it easier, he said, to avoid the more immediate pressures of the national electoral cycle ». This may be understood as a restatement of the virtues of supranationalism. But it may also be seen as an evidence that Community politics continue to be seen as a means to substitute, as Monnet hoped, technocratic reason for electoral passions.

The Maastricht treaty is certainly the major moment of the permanent process of constitutional change that took place from the Single Act to the Summit of Amsterdam. A large aggiornamento was made when committees of inquiry, the right of petition, the procedure of appointment of the Commission, which had all been invented by the EP, were included in the treaties. Moreover, the synchronisation of the Commission's term of office with the EP's electoral cycle, coupled with the development of the EP's legislative powers, allowed for a better coordination of all these instruments. The procedures of appointment and censure on which we will focus now are thus part of a much broader constitutional shift, which is the result of a long struggle and, some argue, the inception of a new phase of parliamentarism in the Community (Westlake 1998). Such an optimistic prospect, however, ignores that, in practice, the Parliament does not seem to be willing to draw the political consequences of these formal changes.

III Appointing the Commission

The birth of the appointment procedure followed the classic customary process described above. The European Parliament first organised, of its own initiative, what it called a « confirmation hearing »[3] of the Thorn Commission in 1981. The new President was supported by 155 MEPs while 31 votes were cast against him (21 abstentions), during a session the vast majority of the assembly (227/434) did not attend. The 1983 Stuttgart Solemn Declaration of the Heads of State or Government codified this practice, granting the EP bureau a consultative role in the choice of the President of the Commission. In 1985, 1988 and 1993, the Commissions presided over by Jacques Delors were similarly approved by the EP : 209 MEPs supported the team in 1985 (34 no, 38 abstentions), 257 in 1993 (84 no, 8 abstentions)[4], while the 1988 process occurred in such an enthusiastic climate that votes were not counted - the second Delors Commission was, so to say, elected by acclamation.

The procedure begun to be taken more seriously after Maastricht. It had been defined in the Treaty, and the EP had been granted the right to be consulted on the choice of the President-designate a priori and to approve the nominated college a posteriori. MEPs immediately intensified their role when they organised, again on their own initiative, an intermediate process of individual hearing of nominated commissioners. This is a very interesting invention, actually derived from a non European tradition, namely that of the US. In other words, it is a typical case of transplant of a presidential institution within a parliamentary system. It is because they are not part of the procedure of appointment and can not censure the members of the executive that American congressmen organise their hearings — to try and influence a President they are unable to constrain. The fact that MEPs have felt it necessary to imitate this presidential practice, though they are involved in the procedures of appointment and censure, makes it plain that they are conscious of the imbalance in the power of nomination between the European Parliament and the Heads of State or Government[5].

The differences between the Community practices and the parliamentary model which is supposed to be its major reference is even more patent when one examines how these processes have worked in practice.

The preliminary stage : intergovernmentalism vs. parliamentarism

In mature parliamentary systems, most members of governments are drawn from the political majority of the Parliament. This is the result of a long historical process, and it symbolises the fact that the executive is, at least indirectly, derived from the people. As is well known, the classic division of power between the legislative and executive branches is, in this context, replaced by a division between the majority and the opposition

The appointment of the European Commission, though it is based on formally similar procedures is very different from this parliamentary model in practice. First, the proportion of Commissioners who have been elected to the EP before being appointed to the Commission is very limited : only two members of the Prodi Commission (Busquin and Reding) were MEPs when they appeared before the EP committees during the hearings — and ironically they were the two candidates whose « capacities » were the most strongly criticised by MEPs. Moreover, the proportion of Commissioners who have been, former MEPs, is also very small. It was between one fifth and one third during the Delors era, reached 40% under Santer and has fallen back to 15% in Prodi's team. A much larger section of the successive Commissions are former (national or regional) ministers : 15 out of the 20 members of the Prodi Commission. All Commissions have also had a small number (c.15%) of members who have neither been national nor European politicians, but had a civil servant or academic background.

The absence of a crucial rule of parliamentarism, the parliamentary origin of members of the cabinet, is due to the fact that Commissioners are selected by governments, by mutual consent. True, the European Parliament had called for strong leadership, and implicitly considered Romano Prodi as a good candidate before he was formally chosen by the governments. But when there is no implicit agreement between the EP and the Council, as was the case in 1995 when some Member states wanted a low-profile President and vetoed the Belgian Prime Minister Jean-Luc Dehaene's candidature, the EP proved completely unable to oppose the governments, or even to influence the intergovernmental bargaining. The EP's role in this crucial preliminary stage of the process of appointment is close to nothing[6], and in practice the Commission may certainly not be seen, by contrast with governments, as an emanation of the European assembly. It is closer to primitive "cabinets", which were the emanation of the Head of state. This is precisely why MEPs have invented the procedure of individual hearings, hoping that they could gain influence on this process from which they are formally excluded.

The intermediate stage : technocratic arguments vs parliamentary practices

If the preliminary stage of appointment shows that the formal parliamentary model remains imbued with intergovernmental attitudes, the second stage (hearings) reveals the weight of technocratic reasoning in Community practices. The major function of the procedure of appointment is, in mature parliamentary systems, a highly symbolic one : all decisions concerning the composition of the executive have indeed already been taken when the future prime ministers appears before the Parliament. This procedure, which is usually closely followed by the media, gives the majority the opportunity to underline its political coherence, and the opposition the power to criticise its project and thereby define its own ideological identity. Though it does not contribute to scrutinise the executive, it plays a very important socialising and legitimising role : J. S. Mill already noted that citizens find, in these discussions, references which help them understand the logic of politics. Again, transplanted in the Community context, this procedure has a very different meaning.

Firstly, nominated Commissioners are heard by the EP's specialised committees, and the President-designate is the only member of the college who is submitted to debates in plenary sessions. This choice reduces the political dimension of the process. Discussions within specialised committees tend to fragment the public image of the Commission. Moreover, a close examination of the written as well as of the oral questions asked by MEPs confirms that most of them tend to think of themselves as experts in one specific EU competence, verifying that commissioners ought to be « competent » in their fields, rather than merely representatives of the people defending a general conception of the common good[7]. It is difficult, in these conditions, to give full accounts of these technical discussions in the media. The « prismatic » approach to EU issues derived from the definition of EU competencies (Dehousse 1995), together with the propensity of MEPs to act as EU experts (Costa 1996), turns this political process into technical discussions. It is true that an ever larger proportion of national MPs also tend, nowadays, to define themselves as "Policy advocates" (Norton 1997). But, in this new context, the time of appointment, because it is concentrated on broad orientations and values, precisely compensates for this more segmented approach of politics.

Some MEPs are conscious of these limits of the appointment procedure in the Community and try to stimulate larger discussions. Where the Commission’s competencies are broader (competition), or where it deals with matters which usually stimulate left-right polarisation (social affairs and employment), hearings have led to some political debates, opposing left-wing MEPs (GUE, Greens and some socialists) to their conservative colleagues of the PPE. Moreover, in some cases MEPs have criticised the division of competencies between Commissioners, arguing that fragmentation (in the case of external affairs, commerce and development ; economic affairs ; environment and health protection) would make global discussions and controls difficult, in spheres where both the Commission and the EP have large formal powers. There are thus some signs that MEPs regret this prismatic approach and its impact on the content and style of parliamentary debates. But most of them continue to consider that the Commission should be a neutral institution, and that its members should generally forget their political affiliation : during the 1999 hearings, just to quote one example, Frits Bolkenstein was asked by a unanimous EP committee to abandon his presidency of the Liberal International, considered as incompatible with his membership of the Commission. Romano Prodi made it plain, in each of his speeches before the EP, that he would ignore ideological divisions and look for consensus.

Secondly, MEPs tend, during these hearings, to focus on quasi criminal matters rather than policy issues. In 1999, the majority of their questions were focused on the integrity of the commissioners-designate. The four candidates who had been members of the former college were cross-examined about their responsibility in the affairs of the Santer time. Four other members had to give detailed information about external « scandals », and they were the only ones against whom explicit doubts were formulated. In other words, MEPs tend to examine past facts, to qualify them and to pronounce judgements, acting like a Court or a primitive Parliament limited to penal control, more than like a modern Parliament discussing the future political programme of the executive. In this respect, the process of hearing is closer to an a priori censure than to a political deliberation. In their letters to the President of the Commission, most committees underlined the integrity, independence and competence of the Commissioners-designate, without a word about their political intentions. But there again, some committees have regretted that these long discussions had left few time for political debates about the content of the policies.

Thirdly, MEPs have often dedicated a large part of these hearings to institutional questions, and have tried to obtain guarantees from the candidates that they would promote the Parliament, and that they would resign if a majority of the Parliament asked it. In their letters to the President of the EP, the committees have insisted on these aspects, formulating doubts about those who had not strongly supported the parliament. This can be seen as a reaction to the intergovernmental nature of the first stage of the process : knowing that the Commission is derived from governments rather than from the EP itself, MEPs try to convince the candidates, if not to shift their loyalty, at least to express their « special relationship » with the EP vis-à-vis the Council.

All these discussions reveal the same dilemma. On the one hand, the national pattern convince some MEPs that they should uses these procedures to stimulate general discussions on the future of the Community, thereby giving "references" to citizens. On the other hand, they know that politicising the Commission would undermine its capacity to forge compromises between the EP and the Council. Unable to choose between these two strategies, they produce a hybrid parliamentary logic, mixing political and technocratic logics.

The final stage : compromise vs. alternation

The final vote of MEPs on the Commission as a body confirms the limits of the parliamentary model. While similar votes in national systems underline the cohesion of a majority and its political identity, the European vote of appointment insists on the ideological neutrality and the political independence of the Commission. Romano Prodi gave a perfectly orthodox exegesis of the original Community model when he stated, after having presented his team to the Parliament on 21st July 1999, that « This new college (...) provides a fair balance between the political complexion of the national governments and the European Parliament, and I welcome this. But let us be clear. The Commission does not function along party lines. This Commission is a college and Commissioners are no more extensions of political groups than they are representatives of national governments ».

This analysis is actually closer to the President's ideal than to the practice. Since the members of the college are selected, by mutual consent, by governments, they always cover a large spectrum of political families. As a result, the Commission has long reflected the two-thirds majority of the Parliament : from 1988 at least, a stable 65% of its members have been former members of parties which are part of the PPE or PSE[8]. There is here a typical parliamentary coincidence between the informal PPE-PSE coalition which is reached in most legislative votes[9] and the composition of the Commission, and it is striking to notice that though it is perfectly stable it is constantly denied.

The 1995 vote for the approval of Santer gave some signs of polarisation : but the opposition of large segments of the PSE was directed against the governments who had accepted the ultimatum of the British Prime Minister against Jean-Luc Dehaene's candidature. The ideological dimension of this vote was only apparent[10], and the vote of approval of the whole college confirmed the stability of the two-thirds centrist majority.

Approval of Jacques Santer Appointment of the Commission

| |Yes |No |Abstention |Yes |No |Abstention |

| | | | | | | |

|PSE |45 |140 |5 |177 |28 |9 |

|PPE |153 |0 |1 |158 |9 |4 |

|ELDR |7 |24 |6 |31 |4 |13 |

|GUE |0 |22 |0 |0 |14 |16 |

|RDE |24 |1 |1 |19 |0 |3 |

|NI |6 |12 |0 |8 |14 |0 |

|EN |0 |8 |8 |0 |0 |14 |

|ARE |0 |20 |0 |0 |13 |0 |

|Greens |1 |18 |2 |0 |21 |1 |

|FE |26 |0 |0 |22 |1 |0 |

| | | | | | | |

|Total |262 |245 |23 |416 |104 |59 |

In may 1999, Romano Prodi was supported by a even larger majority of 77,4%, the opposition coming mainly from the left-wing and nationalist groups, along with some socialist and green backbenchers, who play the role of permanent opposition, in reaction to what they call the hegemony of the centrist groups. The vote of approval of the whole Commission in September 1999, after the elections of June 1999 had reinforced eurosceptic groups, reached 70%, with this time a quite large segment of the PPE (51/222) in the opposition. Their negative vote had been justified, in pure parliamentary logic, by the fact that the Commission reflected the governments more than the EP itself. The German red-green government had indeed sent no CDU-CSU member to the Commission, though governments of the countries which have two commissioners usually present one member of their majority and one of the opposition[11]. There was thus no real « fair balance » in the composition of the Commission between the complexion of governments and of the EP. Ten out of the 20 members of the college are close to the PSE, while only five of them are close to the PPE. Whether Romano Prodi likes it or not, this reflects the composition of European governments much more than that of the EP, where the PPE has become the largest group.

Approval of Romano Prodi

| |Yes |No |Abstention |

|PSE |155 |19 |10 |

|PPE |156 |0 |8 |

|ELDR |36 |2 |2 |

|GUE |3 |12 |8 |

|ARE |8 |2 |4 |

|Greens-ALE |10 |6 |7 |

|UPE |20 |3 |2 |

|I-EdN |0 |11 |0 |

|NI |4 |12 |0 |

Appointment of the Prodi Commission

| |Yes |No |Abstention |

|PSE |171 |1 |3 |

|PPE |159 |51 |12 |

|ELDR |48 |15 |0 |

|GUE |0 |29 |9 |

|Greens-ALE |21 |15 |9 |

|UEN |14 |13 |2 |

|EDD |0 |15 |0 |

|NI |1 |17 |0 |

|Total |414 |142 |35 |

If one takes the former membership of commissioners as an indication, the Prodi Commission is composed of « members » of five EP groups and covers 86,5% of the EP representation. Even the largest coalitions of consociative democracies have never reached so large majorities – actually quasi-unanimity. If the comparison with parliamentary models remains possible, the EC regime may be qualified of « hyper-consensus » democracy (Lord 1998). But it might also be compared with the Swiss non parliamentary democracy, known as the “directorial model”. In both cases the executive reflects the quasi-unanimity of the assembly and the results of the elections have no effect on its composition. In both cases, this is the result of successive compromises - in political systems fragmented along multiple lines (national, ideological, religious) - to avoid polarisation and non decision.

All these features of the semi-parliamentary European system are, again, very close to the prehistory of the Westminster model. The absence of social and ideological majority, due notably to the fact that policies are segmented and do not constitute a global programme of social reforms, leads to « negative coalitions », built between all those who are not opposed to the political system, rather than along ideological cleavages. These heterogeneous coalitions also use the ancient technique of « open questions » which consists in ignoring the issues that might lead to ideological cleavage and polarisation. Given the necessity of reaching large majorities, in the Council as well as in the EP, in most procedures, this state of overwhelming compromise is likely to last, and to prevent the formation of a pure parliamentary pattern.

IV Censuring the Commission

In its formal aspects, the procedure of censure is a much more parliamentary one than the appointment : legally speaking, it is a bilateral process between the Commission and the Parliament, of which the Council, the European Council and the governments are supposedly absent. But in practice, national divisions play an important role in this process. Technocratic and judicial-like reasoning are also part of its praxis, making this procedure different from the parliamentary matrix from which it is derived.

Censure is in itself an ambivalent institution. Initially, it was closer to judicial than to political processes. Primitive parliaments were high courts rather than legislative organs, and these origins continue to mark the political meaning of the censure (Baranger 1999). This instrument of control consists in examining past facts, more than future programmes ; it is focused on illegal acts, rather than political divergences. This explains why it is rarely used in political perspectives in national parliamentary systems : when political divergences become too strong within the majority, the government usually resigns before being censured. Censure, like the American impeachment, only re-emerges when political means do not work, as a penal remedy for the inefficiencies of political controls.

In the history of the European Community, however, censure has often been half-way between judicial and political processes. Like primitive parliaments, the European assembly has often made a strategic use of censure to try and strengthen its own position in the system. This was the case with the four first experiences, that took place before the direct election of the EP in 1979 : all these motions were concerned about the legislative and budgetary prerogatives of the Parliament in the framework of the Common Agricultural Policy (CAP)[12]. Using this procedure, segments of the EP were trying to protect their powers (as they have done in parallel through judicial processes). But they were also trying to enhance them : all these motions indeed required that the EP be given larger powers in the CAP. Though the motions were legally directed towards the Commission, governments were actually targeted : they, and not the Commission, had the power to revise the treaty. Censure is thus, in these cases, a strategic instrument in the Council-EP relationship, rather than an instrument of control of the Commission by the EP[13]. The motions tabled in 1992 and 1997, though they clearly denounced Commission mistakes, also contained institutional claims. The President of the Commission, in these two cases, affirmed that he would support the EP's requirements — he did not take any risk since the Commission has no initiative, let alone decision power, as far as revisions of the treaties are concerned. These were mainly symbolic restatement of the « natural alliance » between the Commission and the Parliament vis-à-vis governments.

A tribunitian instrument

The censure may also be used in another political perspective, which is closer to what the French political scientist Georges Lavau called the « tribunitian function » of the opposition. As the Rules of Procedure of the EP allow one tenth of its members to present a censure motion, minor groups, opposed to the Commission in general, or even to European integration in itself, have sometimes used this institution to make their protesting voice heard. This was the case with two motions tabled by an extreme-right wing French MEP in 1990 and 1991. Both denounced the will of the Commission to expand its powers at the expense of national states[14].

This tribunitian function of the censure is also present in motions submitted by much larger groups of MEPs. Since 1992 indeed, censure has become a more serious process : motions are submitted by MEPs drawn from all groups (except the extreme-right, not invited), they clearly focus on acts of the Commission, and are supported by a quite large segment of the EP, though far from the two-thirds proportion required by the treaty[15]. It is interesting to notice that, in terms of political composition, censures are usually supported by the same type of coalition as those who oppose the appointment of the Commission, i.e., left-wing, green and nationalist groups and some segments of the socialist group.

Censure voted on 20 february 1997

|Groups |Yes |No |Abstention |

|PSE |17 |140 |5 |

|PPE |7 |138 |2 |

|ELDR |4 |26 |2 |

|ARE |12 |3 |2 |

|GUE |25 |0 |0 |

|EN |12 |3 |0 |

|NI |17 |1 |1 |

|UPE |5 |15 |1 |

|Greens |19 |0 |2 |

|Total |118 |326 |15 |

| | | | |

The weight of the national factor

Though the structure of the vote is slightly different in 1992, 1997 and 1999, a “coalition” of ideologically heterogeneous minorities is always the main supporter. But the most striking fact, in these cases, is the importance of the national factor. In 1997, in the context of the ESB crisis, 57 of the 67 French MEPs voted Yes, grouping communist, socialist, conservative and extreme-right French MEPs. On the other hand, 75 on 85 German MEPs, 71 on 76 British MEPs and 25 on 26 Dutch MEPs voted No. All "groups" seemed more coherent on a national than on an ideological line.

The balance between ideological and national cleavages was even more complicated in the motion voted in 1999 against the Santer Commission. On the one hand, signs of solidarity between socialist MEPs and commissioners clearly came to the fore for the first time : the motion had been tabled by the socialist group which used it as a “negative censure” against those MEPs who criticised socialist Commissioners. The classic alliance between the PSE and PPE groups was, on this occasion, deeply challenged. But on the other hand, the national factor seemed to be the crucial motivation of most votes. Within these two larger groups, the cohesion was very weak : the motion was opposed by the PSE but 37 of its members nevertheless supported it ; the same holds true for the PPE, 70 members of which voted yes, with the Greens, most communists, nationalists and Gaullists. This internal division can only be explained by national factors : in most groups, the motion was opposed by Italian, Spanish and Portuguese MEPs, while it was supported by most German MEPs (87/93). In a period of budgetary discussions, those who benefit from the EC budget were probably willing to support the Commission, while those who are the major contributors to this budget were not afraid of an intergovernmental budgetary discussion with a weakened Commission. In any case, a clear North-South divide appeared in these votes. It would be difficult, if not impossible, to prove that MEPs were following signs from their governments, but it can not be denied that they acted, in this case, more as representatives of their state than as European MPs.

Censure voted on 14 January 1999

|Groups |Yes |No |Abstention |

|PSE |37 |159 |2 |

|PPE |70 |91 |21 |

|ELDR |32 |6 |0 |

|ARE |4 |13 |2 |

|GUE |18 |3 |0 |

|I-EdN |14 |0 |0 |

|NI |18 |10 |0 |

|UPE |14 |11 |2 |

|Greens |25 |0 |0 |

|Total |232 |293 |27 |

Technocratic and judicial arguments

If, then, the international logic plays an important role in this procedure, the technocratic reflex also proved crucial. First and once again, because those motions usually denounce the Commission's lack of competence, and not the content of the policies it promotes, considering it more like an administration than like a government. Secondly because MEPs themselves have, in the case of the last motion, decided to defer to the advice of a « committee of experts ». This spontaneous submission to experts, in the midst of a highly political procedures, is in itself an evidence of MEPs' unwillingness to act as politicians, and to present themselves as neutral experts who follow the scientific objectivity of facts.

Given the mixture of technocratic, national, penal and ideological arguments, censure is a hybrid practice. It probably does not help citizens understand what governs the relations between the Commission and the Parliament. The legal procedure in itself is unclear : on the last occasion, it had actually been asked for by the President of the Commission himself, who used this instrument because the treaty contains no mention of votes of confidence ; it had been tabled by a parliamentary group which wanted to reject it to express support for the Commission. This negative use of censure does not clarify its political function. The French socialist MEPs illustrated the confusion this institution may create when they announced that they finally did not present the motion, because presenting a censure motion against which one intends to vote is contrary to the... French parliamentary tradition!

It is true, however, that the EP now benefits from a large number of procedures which, if their use was coordinated, could amount to a severe control of the Commission. The 1999 institutional crisis gave signs of a certain continuity between these practices : the censure motion was proposed after the discharge on the budget had been refused ; it was followed by the resignation of the college ; and MEPs used the hearings, three months later, to obtain guarantees from the new college that a new Code of Conduct would be adopted and that commissioners would now resign if the President asked them to. A posteriori and a priori instruments are then part of a global process, through which MEPs influence the institutional revision — which might, in turn, be translated into the treaty. But, once again, their power was limited to institutional arrangements and the EP did not influence the content, actually did not try to influence the content, of the Commission's policies.

Some fear that, while the EP is strengthening its control on the Commission, the Community might become a « Congressional state » to use Woodrow Wilson's phrase, and suggest, to prevent this risk and restore the balance of powers, giving the Commission a right to dissolve the EP. Experience shows, however, that the two-thirds majority necessary to adopt a vote of censure is in itself a guarantee that the Commission will not be submitted to eventual parliamentary troubles. True the Commission resigned in 1999 in spite of the fact that the motion of censure had not been approved by the two-thirds majority. But this was largely due to the fact that the then President was legally unable to oblige those Commissioners who were criticised by the EP to resign. And it should not be forgotten that the Commission preserved, in these circumstances, a large power of interpretation : it is not sure that the EP would have reached the two-thirds majority if he had refused to resign. In other words, this stringent procedural condition contains in itself a balance between the controlled and the controlling institutions.

Towards individual censure ?

The same holds true as far as individual accountability is concerned. MEPs had frequently required a parliamentary right to dismiss Commissioners individually. The solution suggested by Romano Prodi is a much more balanced one : he has asked the members of the college to give personal guarantees that they would resign if he asked them to ; and he has promised MEPs to examine their demands carefully if they overwhelmingly required the resignation of one Commissioner. This customary creation of individual accountability, which has been, once again, translated into the treaty at Nice, preserves the margin of manoeuvre of the Commission's President, while it gives MEPs some eventual influence. National experiences have shown, in Germany e.g., that even if the Parliament is legally unable to force one member of the executive to resign, the President of the executive usually follows its claims when they are expressed by a large part of the assembly — and if he thinks this claim is supported by public opinion (Le Divellec 1999).

The achievement of individual responsibility however requires two elements which cannot be found in the present situation. First, individual political responsibility is only possible where the executive has got a strong collective identity. In this case, the President may consider, when he examines an individual parliamentary « censure » either that the Commissioner's decisions are not collectively agreed by the college and he has to resign because he acts separately and must bear the responsibility of his actions individually ; or that he is supported by the college and the President may refuse the Parliament's claim. Without real collegiality, the President's power of interpretation is limited to cases of penal responsibility — i.e. he can agree or refuse to ask a Commissioner to resign according to the existence or not of illegal acts ; but as the existence of illegal acts is often an objective factor the President's power is a symbolic one. Second, individual political responsibility of Commissioners requires political irresponsibility of senior officials. In the recent past, as Commissioners could not be dismissed, sanctions were imposed on subordinate civil servants. These were, in other words, administrative and not political responsibilities. If, on the contrary, Commissioners were responsible for the mistakes made in their departments, as is normally the case with ministers, individual political responsibility might be one appropriate answer to the accountability deficit of the European administration. Accountability is indeed a legal fiction, invented to make sure that any mistake may be imputed to someone : if a civil servant has committed a personal fault, he can be administratively sanctioned for it ; but when a wrong decision or non-decision has got no personal author — as is often the case in complex political systems, as the ESB crisis illustrated — the head of the department takes it on politically. This mechanism plays a very important symbolic role in parliamentary systems, because it makes the impunity of the power impossible[16].

V The emerging Community model of accountability :

functional efficiency and symbolic weakness

Appointment and censure procedures are a typical case of institutional transplant : forged in the peculiar context of parliamentary systems, they have been integrated by MEPs in the Community context, which is deeply different from the national model. MEPs and authors of the treaties are indeed so imbued with the classic majoritarian model within which they have been socialised that they apparently are unable to conceive other means to hold European authorities accountable.

Grafting of old institutions on to a new stump is always a complex process : transplanted organs need to adapt themselves. This is what is occurring in the Community context. Parliamentary institutions do not seem to be alternatives to non-majority mechanisms of control. On the contrary, MEPs tend to interpret parliamentary practices in order to make them compatible with the non-majority features of the EC. Appointment and censure procedures therefor have a peculiar meaning in this context.

National divisions still play a crucial role in Community interinstitutional relationships. The selection of the members of the Commission, as well as their scrutiny by MEPs, are largely governed by national reflexes. This is the reason why it remains impossible to forge a clear political majority in the EC : as the Commission reflects national political situations, it crosscuts ideological cleavages. Most major political families are “represented” in the Commission, which appears as a “directorial” executive, close to the Swiss model. In this state of “overwhelming consensus”, the classic distinction between the majority and the opposition is meaningless. Appointment and censure are, therefor, governed by other references.

First, technocratic reasoning are more frequent than ideological discussions in the relationship between the Commission and the EP. Since ideological differences are hidden by overwhelming consensus, and since the Commission is still defined as a “neutral” organ, MEPs indeed need to build their criticisms on other grounds. Rather than underlining their political disagreements with the college, they examine the Commission’s expertise. In other words, they present themselves as “experts” of EC policies and use “objective” arguments based on “scientific” reasoning to scrutinise the executive organ.

Secondly, MEPs also tend to use legal and judicial arguments when appointing and censuring the Commission. Again, the overwhelming consensus leaves few room for criticisms based on ideological differences. True, some small EP groups, which are not part of the consensus, use these procedures as “tribunitian” instruments to denounce Commission objectives and actions, but the vast majority of the assembly rather refer to more “neutral” arguments, like the respect by the Commission of its legal obligations or the independence and integrity of its members.

Though they had been invented to politicise EC issues, these procedures have actually led to another result. The weight of non-majority mechanisms of control is so strong in the EC that they do not only appear as “alternatives” or “substitutes to parliamentary practices” (Majone 1996, Héritier 1999), but also influence them : far from politicising legal and technocratic procedures, these political processes have been interpreted by MEPs along legal and technocratic lines.

Derived from national models, appointment and censure procedures thus have very different meaning in the EC context. It remains to be seen how efficient these hybrid practices can be. In national systems, these procedures perform two types of functions (Norton 1990). On the one hand, they are designed to give the minority the opportunity to control the governing majority. Though the minority, because it is a minority, is unable to prevent the formation of a majority or to censure it, it may use these events to criticise the government and to constrain it to explain and justify its action. MPs who support the government may also, when they are not too strictly controlled by their party, make sure that this delegate power respects its mandate. In other words, these mechanisms epitomise the division of powers within the “political class”. The situation is very different in the EC. Since there is no clearly identifiable majority in this case, and since the EP is not the only source of the college, the relationship between the EP and the Commission is not a “principal-agent” one. The Commission is not subordinate to a parliamentary majority which can sanction it, but rather scrutinised by MEPs who can only try to influence it. The pyramidal and hierarchic structure of the parliamentary state is replaced, here, by horizontal relations of mutual control (Magnette 2000).

The second major function of these mechanisms in parliamentary systems is a broader one. Though actual negotiations between political parties are usually kept secret, these procedures tend to produce public discussions about the government’s programme and actions. The moments when the government presents its programme or the policies it has implemented to MPs are indeed often covered by the media and give rise to broader political debates. These are two important periods, one programmatic the other evaluative, in the continuous flow of politics. In these circumstances, the Parliament becomes for a few days the “Grand Forum of the Nation”, as John Stuart Mill called it. Political discussions, structured by the simple majority-opposition division, play a crucial role in the socialisation of citizens. It is in these debates, which usually simplify the issues at stake, that citizens can find references which will help them understand politics (Bagehot 1963, Thompson 1970). Moreover, the fact that the majority can always be changed if the opposition proves able to dismantle it, helps citizens accept the government, even if they do not agree with it. The permanent possibility of alternation has always been, in parliamentary systems, one of the fundamental elements of its legitimacy (Beetham 1991). Again, the Community context gives a completely different meaning to the same institutions. In the absence of majoritarian features, it is very difficult to submit European policies to large political discussions within which citizens can find references and understand the system. Legal and technocratic arguments are much more sophisticated terms, and they do not give rise to bipolar debates. The very low turnout in European elections may be interpreted as a sign that citizens understand that the composition of the Commission, and the content of European policies, are not influenced by their electoral choices, because overwhelming consensus makes alternation impossible. If the transformation of the EC into a fully-fledged parliamentary system remains impossible, as we believe, European institutions still have to invent their own solutions to help citizens understand, and accept the EC “constitution”.

References

Bagehot, W. (1963), The English Constitution (1867), London, Collins.

Baranger, D. (1999), Parlementarisme des origines, Paris, Presses universitaires de France.

Beaud, O. (1999), « Le transfert de la responsabilité du ministre sur ses proches subordonnés », in O. Beaud & J.-M. Blanquer (eds.), La responsabilité des gouvernants, Paris, Descartes & cie, 203-234.

Beetham, D. (1991), The Legitimation of Power, London, Macmillan.

Chritiansen, T. (1997), 4/1, « Tensions of European Governance : politicized bureaucracy and multiple accountability in the European Commission », Journal of European Public Policy, 73-90.

Clergerie, J.-L. (1995), 111/2, « L'improbable censure de la Commission européenne », Revue de droit public et de science politique, 205-220.

Corbett, R. (1998), The European Parliamnt's Role in Closer EU Integration, London, Macmillan.

Costa, O. (1996), « Le Parlement européen entre efficacité fonctionnelle et déficit politique », in G. Duprat (ed.), L'Union européenne, Droit, politique, démocratie, Paris, Presses universitaires de France,145-174.

Costa, O. (1999), « Enjeux et usages des compétences budgétaires du Parlement européen », in P. Delwit, J.-M. De Waele & P. Magnette (eds.), A quoi sert le Parlement européen ?, Brussels, Complexe,109-130.

Craig, P. (1999), "The Nature of the Community : Integration, Democracy and Legitimacy", in P. Craig & G. De Bùrca (eds.), The Evolution of EU Law, Oxford, Oxford University Press, 1-54.

Curtin, D. (1993), 30/1, « The Constitutional Structure of the European Union : A Europe of Bits and Pieces », Common Market Law Review,17-69.

Dehousse, R. (1995), 18/3, « Constitutional Reform in the European Community : Are there Alternatives to the Majoritarian Avenue ? », West European Politics, 118-36.

Héritier, A. (1999), 6/2, « Elements of democratic legitimation in Europe : an alternative perspective », Journal of European Public Policy, 269-82.

Hix, S. & Lord, S. (1996), 36/1, "The Making of a President : The European Parliament and the Confirmation of Jacques Santer as President of the Commission", Government and Opposition, 62-76.

Hix, S. & Lord, C. (1997), Political Parties in the European Union, London/New York, Macmillan.

Kapteyn, P. G. (1962), L'Assemblée commune de la Communauté européenne du charbon et de l'acier, Un essai de parlementarisme européen, Leyden, Styhoff.

Le Divellec, A. (1999), « La responsabilité politique dans le parlementarisme majoritaire : quelques remarques autour du cas allemand », in O. Beaud & J.-M. Blanquer (eds.), La responsabilité des gouvernants, Paris, Descartes & cie,189-199.

Lord, C. (1998), Democracy in the European Union, Sheffield, Sheffield Academic Press.

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Magnette, P. (1999), « L'Union européenne : un régime semi-parlementaire » in P. Delwit, J.-M. De Waele & P. Magnette (eds.), A quoi sert le Parlement européen ?, Brussels, Complexe, 25-54.

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( Institute for European Studies, Free University of Brussels

[1]For a recent and thought-provoking analysis of the Westminster model, see (Baranger 1999).

[2]See Europe Documents, 27 may 1998, n° 2089.

[3]Bull. CE, 1981/2, pp. 48-49.

[4] In 1985, 279 of the 434 MEPs took part to the vote (64,3%). They were 349/434 in 1993 (80,4 %).

[5] According to certain MEPs, this procedure was also justified by the absence of individual censure.

[6]Hence the suggestion made by Jacques Delors that each group would put forward a candidate, and so try to limit the governments’ margins of manoeuvre. The EP's institutional committe has also suggested several times election of the President on a list presented by the European Council. The solution reached at Nice (members of the Commission will not be selected by mutuazl consent anymore but on a qualified majority) is less ambitious but will at least prevent one Member Stats to veto a candidate largely supported.

[7]The procedure moreover leaves few opportunities for political fantasy : questions have to be limited to one minut and answers to three minutes. This rational organisation affects the style of the discussion.

[8]More precise data can be found in (Magnette 1999).

The part of the PPE-PSE « coalition » in the EP has grown from 53,6% in 1979 to 65,8% in 1999.

[9]Estimations are as follows : 75% to 80% of parliamentary votes are supported by a PPE-PSE coalition, while 20-25% of them are unanimous or left-wing oppositions. (Hix & Lord 1997 : 137-138).

[10] Even if the support of the PPE may be explained in ideological terms : "There was also a feeling that the Socialists had held the Commission Presidency for ten years under Delors, that it was now the turn of the Centre right to occupy that key position and that the PPE (…) should mobilize all its votes for Santer" : (Hix & Lord 1996 : 72).

[11]The Schröder government sent one commissioner from each party of its coalition, namely one social-democrat and one green, while Britain, Spain and France sent one member of the majority and another one from the opposition.

[12]An analysis of these experiences until 1992 can be found in (Clergerie 1995). I have analysed the three last motions in (Magnette 1999).

[13]Two of these four first motions were not submitted to votes. The two others only got the votes of their proposers (18 yes, 109 no, 4 abstentions in June 1976, and 15 yes, 95 no, 1 abstention in March 1977).

[14]Again they only got the votes of their proposers : 17 yes in February 1990 (264 no, 5 abstentions) ; 8 yes in July 1991 (206 no, 5 abstentions).

[15]In December 1992, the motion denouncing the Commission's role in the GATT negotiations, where it was said not to have respected the mandate given by the Council, got 96 yes (246 no, 15 abstentions). The motion submitted in February 1997 denounced the Commission's role in the mad cow affair.

[16]Though it is true that recently Ministers have tried to escape this political mechanism, using civil servants as « fuses » as the media say. But this practice tends to reinforce the popular argument that the highest spheres of power are unaccountable. See (Beaud 1999).

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