The institutional triangle, the three corners of which are the European Commission, the Council of Ministers and the European Parliament, possesses both the executive and legislative power of the EU. However, theoretically the Commission represents the executive power, the Council the legislative power, and the European Parliament acts as a non-exclusive co-legislator. The functioning of this structure is, however, limited. It is apparent that the Commission lacks legitimacy, furthermore that the Council of Ministers, although having the role of a lower chamber, acts as a governing body. As for the European Parliament, some consider it as a halfway parliament, demonstrating a lack of genuine legislative ability.
The Commission is in effect a kind of EU government, on a functional level, intended to go over the heads of the interests of the Member States themselves, and concentrate on the interests of the Community as a whole. This raises two questions: the number of Commissioners and the manner in which the president is nominated. The first of these sidesteps the concern of each Member State of not having a national representative in the Commission. At present their request is upheld, but could this system be effectively maintained with 25 or even 27 Member States? Ben Fayot, Member of the Luxembourg Parliament and the Convention believes that the Commission should be composed of commissioners allocated by every Member State. Au contraire, Alain Lamassoure of the European Popular Party, French representative of the European Parliament and Member of the Convention, believes it essential to update the composition and nature of the Commission, arguing that more Commissioners would lead to failure. According to Lamassoure, the EC must rid itself of any idea of Member State representation if it wishes to become the heart of European common interests and deserving of the title of European Authority.
The Council of Ministers: The Lower Legislative Chamber?
As the body responsible for the nomination of the President of the Commission (presently elected by the European Council, and invested by the European Parliament), the Council of Ministers could take on a more political and democratic role.
The idea of democratic election is underway. All that remains now is to decide who will vote. The Members of the European Parliament perhaps? As for the candidates themselves, they could be chosen from amongst the Members of the European Parliament (MEPs) or representatives of European political groups. The president could thus construct his team for political rather than geographical reasons.
It should be noted that the Commission puts forward its own vision in the Penelope document, which is a contribution to the draft EU constitution. Here the European Commission is seen as the executive institution of the Community, composed of as many commissioners as there are Member States (but, with 27 Members, a rotation system is on the horizon), the president of which is elected by the European Parliament and approved by the European Council.
As a legislative instrument, the Council of Ministers also carries out executive functions; and it is this dual function, both legislative and executive, that has provoked a certain amount of debate. As well as being the assembly of the States (i.e. their representatives), the Council should also be the lower legislative chamber, the European Parliament above it representing the European population. This proposition falls on deaf ears however, as the Ministers of the Council are reluctant to give up their status in order to adopt one more similar to that of the parliamentary members.
Contrary to the European Council, which brings heads of State together, the Council of Ministers should be willing to undergo a transformation concerning its abilities and way of functioning. Lamoussoure would like it to become the Council of the European States, composed of two distinct bodies; the Council on legislative formation which would bring together the relevant ministers, each with one sole vote, and would have legislative power. Debates and voting would be public. A second body would be the Coordination Council. This would deal with the various different areas covered by the EU and would comprise those members as needed to form positions, closed hearings.
As well as Lower Chamber, the Council would maintain a relationship of shared decision-making with the European Parliament. Should they not be able to come to a joint decision, the European Parliament, as representative of the citizens, would hold the advantage in internal legislation, whereas the Council, representative of the governments, would have the final decision in external decisions. The system of weighted voting could ultimately disappear.
National and European Parliaments: a move towards the European Peoples Congress?
EU enlargement will bring with it a reduction in the number of European members of Parliament representing each Member State. The figure presently stands at 626, but once enlargement has come about, MEPs should not exceed 700 (732 according to one estimate of the Nice Treaty, 650 according to Lamassoure). The election process would be made uniform. From a functional point of view, the European Parliament, the democratic element, should have further legislative duties.
The national parliaments could also play a part, and it is here that a dual concern lies: increase the democratic legitimacy of the community legislative process; reduce the desire for sovereignty by incorporating members of national parliaments into the European evolution, by, as some would say, europeanising them. Some, such as Tony Blair, had already proposed that the national parliaments form a European Senate. The Convention working group on this subject finally presented the results of its reflections on the 28th and 29th October, at a plenary session. It has recommended that the constitutional treaty should recognise the role of national parliaments, and that they are better informed on texts and legislative proposals, in the same way as the European Parliament in order to look more efficiently at Europe policies and to ensure a monitoring of the subsidiarity principle (through the so-called 'early-warning' mechanism). A Conference of Community and European Affairs Committee should, moreover, allow consultations and strengthened discussions. The European Parliament and the national parliaments could find themselves in a Congress for European Peoples, which would periodically bring together the MEPs and a proportional number of national parliamentarians, in the presence of the Council and the Commission. The opportunity to add a fourth side to the triangle carries on nevertheless at the centre of debate, which some see as a double-edge sword.
The next Intergovernmental Conference will concentrate on the draft of the constitutional treaty prepared by the Convention. The recommendations relative to the institutions are considered by many as audacious, but this is not necessarily a bad omen for their future adoption. The balance of power, on the level of the community as a whole, is highly complex and a badly carried out reform of the institutional architecture could risk pushing the EU and its members in an undesirable direction.