A. Introduction
“Rules” of “procedure”—possibly the least most exciting combination of words in the English language.Footnote 1 They are up there with the “terms” and “conditions” we decidedly choose to skip when booking our summer holidays. These rules conjure images of roman numerals detailing steps, sub-steps, and exceptions to those sub-steps, fussed over by individuals who are likely to read the terms and conditions we skip, before booking their summer holidays to somewhere cold, dark, and clean. It is no wonder then that these rules, in addition to not being characterized as laws, have often been overlooked by European Union (EU) legal scholars writing on the EU constitutional order. Procedural rules are technical and jurisdictionally specific, with the reader having to do a lot of work to glean the normative connection between said rules, the democratic and legal institutions they shape, and the constitutional orders they operate within and have an influence on. This being the case, procedural rules do shape the work of the European Parliament, and through it, the European constitutional order. They are the oft-forgotten constitutional change makers in a discourse preoccupied with referenda, legislation, and judicial decisions. The purpose of this Article, therefore, is to take on the role of the abovementioned “reader.” That is, to provide EU constitutional scholars with a tightly focused overview of why the Rules of Procedure of the European Parliament ought to form part of any attempt at explaining how the EU constitutional order has come to function the way it has, and why they must also form part of any future-oriented picture we want to paint of an EU after the 2024 parliamentary elections.Footnote 2
Utilizing Professor Paul Craig’s “modalities of constitutional change” and Professor Bruno de Witte’s call for constitutional scholars to focus on “law in action” as my methodological guiding stars, I argue that the Rules of Procedure effect constitutional change in the EU in two ways: directly, by shaping the nature of the interinstitutional relations between the Parliament, Commission, Council of Ministers and European Council; and indirectly, by constructing a particular form of parliamentarianism—focused on legislative efficacy and executive accountability—that has helped to shift, ideationally, the European Union from a legal constitutional order to something resembling more of a mixed constitutional order—political and legal.Footnote 3 The justiciable dimension to the Article entails a brief exploration of the extent to which the Court of Justice of the European Union (CJEU) has the potential to oversee such procedurally-driven constitutional shaping, or, if the Rules of Procedure are completely out of the justiciable purview of the Court. In addition to being relevant to the ideational issues posed, the justiciability of these rules is worth exploring as, unlike most other democratic constitutional orders, it is impossible to dissolve the European Parliament, leaving few ways to resolve intractable disputes that may arise from the Parliament exercising its procedural rule making powers in ways that hinder rather than help the European Union to fulfil the objectives set out in the Treaties.
As mentioned at the outset, my efforts are focused on the relationship between the Rules of Procedure and constitutional change: why they haven’t been of focus, how such rules effect change, and the potential for and lack of judicial oversight. It is for future papers to consider the normative consequences of what I have to say in relation to the issues I raise, and what ought to be done about them.
B. Modalities of Constitutional Change and the Importance of Studying Law in Action
Constitutions do change. This fact is one of the few non-contentious statements that can be made in constitutional law.Footnote 4 Explaining how such change takes place, or ought to, and where the line lies between change, norm implementation, and specification is a little more controversial. Professor Craig provides us with four universal means by which constitutional change generally takes place: formal constitutional amendment—referenda, or special legislative procedure; legislative constitutional amendment via the ordinary legislative procedure; amendment via judicial interpretation; and informal constitutional amendment—conventions, practice, and perceptions of the constitution.Footnote 5 This list generally mirrors the modalities of change that have been referred to by other scholars who have analysed the drivers of change from both empirical and normative perspectives.Footnote 6 These other authors also, however, clarify the question of how one ought to distinguish between constitutional change and mere constitutional enactment or application. For instance, Professor Oran Doyle does this by determining, based on the constitutional culture of the system under analysis, what the normatively expected means of change is or are. Five models—to accompany Craig’s modalities—are referred to: the elastic model—an unentrenched constitution that is to be changed by legislation, with no procedural limits or eternity clauses; the evolutionary model—where formal change is accepted to be difficult, seeing informal change to be an accepted feature of the process of change; the pragmatic model,—where formal change is the preferred method as it easy to achieve either due to the procedures or the political culture; the distrust model—deliberately complicated amendment procedures are designed to make change difficult; and the direct democratic model—where change is to be achieved through direct democratic processes, with few procedural hurdles.Footnote 7 Informal constitutional change, according to each of these models, is never a deliberate design feature; it can only be a consequential constitutional fact—a result of the difficulty of formal change. Therefore, all informal constitutional change is constitutional change, the question is just one of degree and the novelty of its means of delivery.
In the European Union, scholars have tended to make two mistakes when describing the process of constitutional change as applied to the EU constitutional order: first, to give exclusive attention to the first three of the four typologies listed—referenda, legislation and judicial interpretation;Footnote 8 and second, to consider each of these typologies as discrete categories, rather than overlapping components of the same process.Footnote 9 The point that Professor Craig makes, and that is seemingly lost in much of the EU constitutional discourse, is that while different in nature and influence, each of the typologies are important drivers of constitutional change, with said importance not necessarily dependent on the character of the method, but instead on the culture of the constitutional system,Footnote 10 and the way in which it reacts to particular constitutional moments.Footnote 11 Consequently, by overlooking the fourth category in any analysis of the process of constitutional change in the EU, or, by failing to consider the interrelationship between each of the four categories, any description of the process of change in the EU will necessarily be incomplete. Incompleteness matters, as the story we tell about how a constitutional order can change necessarily frames any debate about what the constitutional order under analysis is, and in so doing, sets practical and theoretical limits on discussions regarding what a constitutional order ought to be or become, as well as the kinds of change that are legitimate or permissible vis-à-vis the tools that are available.Footnote 12
A good example of what I am getting at, in terms of this issue of incompleteness, is the limited explanatory power each of the first three of the four typologies mentioned above have with respect to the story of the growth in the constitutional power and influence of the European Parliament in past decades. If one were to look to the history of formal treaty amendments or the provisions of the treaties themselves for evidence of the process of the Parliament gaining greater power over the selection of incoming Commissioners, the legislative and budgetary processes, general scrutiny of the Commission, or in the crafting of the identity of the European polity, one would only get a hint of the actual power the Parliament currently possesses, and only an indication of the process that led to it gaining such power.Footnote 13 The case law of the CJEU would be of limited assistance,Footnote 14 and while the influence of the Parliament over the legislative process may be determined by examining legislation that has passed and comparing that to the public positions taking by the Parliament, given the complexities of the process, one would be hard pressed to pick up on the shifting power dynamics through legislative analysis. Instead, to understand the role of the European Parliament one must analyze how the limited powers originally granted to the Parliament—of consultation, oversight, and confined approval/veto powers—have been used, and post-expansion, continue to be used in practice. That is, how the normative gap that always exists between a formal rule and its implementation has been exploited and shaped by political actors through the use of informal modes of change, and in so doing, how such exploitation has affected the functioning of the constitutional order as a systemic whole.Footnote 15 This can only be done by also considering, seriously, the fourth category to which Professor Craig refers to as “institutional conventions, or perceptions of the constitution by the people. There may be practice by the relevant players, which either undermines the formal constitutional norms, or imbues them with greater force than they would otherwise have as judged by their formal text.”Footnote 16
C. Why the Fourth Modality Has Been Overlooked—Law in Action
Before getting to the issue at hand, I briefly want to touch upon why, given the abovementioned importance of this fourth category to constitutional description and analysis, informal means of constitutional change have been so under analyzed in EU constitutional scholarship.Footnote 17 I suggest two reasons: the first relates to the predominance of positivist doctrinal methodological approaches to the study of constitutional law in the EU;Footnote 18 the second is the perceived limited importance of the European Parliament as a constitutional actor up until the last decade or so.Footnote 19 It is useful to consider these reasons, as they hint at a larger debate that has long simmered away in the background of the EU constitutional discourse, which is how best to strike a balance between the ‘is’ and ‘ought’ of constitutional law, featured in the work of scholars such as van den Brink,Footnote 20 Besselink,Footnote 21 Maduro,Footnote 22 Dawson, et cetera,Footnote 23 regarding the ability of the positivist approach to the study of law to meet the current constitutional moment in Europe and in many other parts of the world.
Professor de Witte, in his 2022 article on the study of institutional practice, eloquently advances the above point in the following terms:
The dominant mode of research and writing on EU law is doctrinal research based on adherence to legal positivism…. One reason for this continuing adherence to a positivist view of EU law is that the academic study of European law is still strongly fragmented along national lines, meaning that expectations of how EU law should be studied differ along those lines. Given this fragmentation, reliance on the positivist legal tradition allows for the use of a common ‘language’ between those national communities and, thus, for a meaningful exchange of ideas.Footnote 24
While there may be many other drivers of the continued strict adherence to positivist doctrinal methods, the normative point de Witte then goes on to make, and with which I agree, is that such an approach lacks the explanatory power needed to fully grasp what law is as it is practiced:
The positivist approach is appropriate for the study of EU law, provided that a sufficiently broad view is taken of what constitutes a legally relevant practice … legal positivism … should not be narrowly limited to the study and exposition of written legal norms but should also include the study of institutional practices that are not, or only partially, based on legal norms.Footnote 25
If these other “legally relevant norms” are not taken into consideration, “the black letter of EU law remains a dead letter.”Footnote 26 We end up in the realm of semantic studies, only dealing with the “ought,” rather than engaging in the study of law, which also necessarily engages with how it “is” practiced—what the law “is” in fact.Footnote 27
To the second point, as touched upon in Héritier’s work, while the story of the European Parliament is one of an institution punching above its constitutionally mandated weight, it is only since the Treaty of Lisbon that EU constitutional scholars have begun to take the role of the Parliament seriously.Footnote 28 There are now a limited number of revisionist scholarly pieces that tell the story of the Parliament’s informal role in shaping the Union, all coming in the last decade or so.Footnote 29 This is, in part, due to the dominant role the CJEU has played in the constitutional discourse since the 1960s,Footnote 30 with the story of the constitutional development of the EU generally told in terms of the development of the Court’s case law. This is not to say that there has been a dearth of scholarship on how the European Parliament functions as an institution, or on its relationship to the other institutions of the EU—there is fantastic political scientific scholarship on the subject—but such scholarship has tended to focus on the particular—voting behaviour, party bloc formation, the peculiarities of the electoral process, et cetera.—over the systemic.Footnote 31 To the extent that there has been scholarship on systemic issues—in particular the influence the Parliament has been able to wield given its limited formal powers—this politico-scientific scholarship has, as one would expect, stopped at the point of describing the nature and use of power, leaving room for constitutional scholars to consider what we are best equipped to consider, which is the issue of whether what has been described ought to be the way in which the constitutional system we have designed operates.Footnote 32 Such issues are constitutional in nature as they necessarily engage with interpretive questions that are tied to consideration of the principles and values underlying and permeating the constitutional order.
D. The Link Between the Fourth Modality and Parliamentary Rules of Procedure
Parliamentary procedure is but one of the potential sub-domains that falls into the fourth modality listed by Professor Craig.Footnote 33 It is formalized institutional practice, reflecting the role given to or attained by the institution. The nature of this role is set out in vague terms in the constitutional text of the constitutional order, or, peculiar to the EU, in Interinstitutional Agreements.Footnote 34 However, and as will be explored further below, the European Parliament, whose role is formally set out in the Treaty on the European Union (TEU), and in Chapter I, Section I of the Treaty on the Functioning of the European Union (TFEU), has had a hand in shaping its constitutional position vis-à-vis the other institutions of the EU through the use of this constitutionally mandated internal rule making power. To understand the scope of the powers of the Parliament, which inform the scope of what the Parliament can do through its procedural powers, it is necessary to consider the constitutional basis for the Parliament, before then turning to the Rules themselves.
I. Treaty on the European Union
Article 13 lists the European Parliament as one of the seven constitutionally recognized institutions of the EU. Article 14(1) establishes the powers to be jointly held by the Parliament and the Council with respect to legislative and budgetary functions. This same Article also gives the Parliament the power to formally approve the President of the Commission. Sub-articles 14(2)-(4) set out the number of Members of Parliament (MEPs), the basis for determining the proportional split among Member States, their term limit, and the process for electing a President of the Parliament. Other Parliamentary powers vis-à-vis the European Council, Council and Commission are then scattered throughout the Treaty: the requirement that the President of the European Council report to Parliament on voting outcomes;Footnote 35 that the European Council propose new Commissioners designate within a specified period of time should they be rejected by the Parliament;Footnote 36 the fact that the Commission is responsible to the Parliament and can therefore be censured by the Parliament;Footnote 37 the requirement that the Parliament be consulted on the actions of the High Representative of the Union for Foreign Affairs;Footnote 38 and the power of the Parliament to recommend formal treaty amendments, et cetera.Footnote 39
II. Treaty on the Functioning of the European Union
Further detail is then provided in the TFEU. Articles 223 to 234 lay out the Parliament’s setup, structure, and powers, as well as the process for appointing the position of the European Ombudsman. Article 229 establishes that there shall be an annual session of the Parliament, but no mention is made of the general regularity of the sessions. Article 230 sets out the ability of MEPs to pose questions to the Commission, without any specification as to means, timeframes or rules as to appropriate content. Article 231 establishes the default “majority of the votes cast” rule but leaves the issue of quorum to the Rules of Procedure. Article 234 elaborates on the censure powers of the Parliament, without describing the basis upon which a censure motion could be brought, or its form. The Article giving the Parliament the power to make its own rules is contained in Article 232 and is set out in the following terms: “The European Parliament shall adopt its rules of procedure, acting by a majority of its Members.” It is worth noting here that the Commission,Footnote 40 Council,Footnote 41 European Council,Footnote 42 and CJEU are also given the power to establish rules of procedure to govern their own decision-making processes.Footnote 43 There is also a peculiar power granted to the Council and European Council to, in their Rules of Procedure, specify the basis upon which they “shall” be heard by the European Parliament.Footnote 44
III. Analysis of the Role of the Parliament in the EU Constitutional Order and the Role of the Rules of Procedure
While there is some specification given to the place of the Parliament in the constitutional order of the EU in the Treaties, there is no overarching statement as to the theory, principles or values the Parliament is to consult when undertaking the task of formulating its own rules,Footnote 45 nor of the reviewability of the rule making process or the content of said rules.Footnote 46 The only requirement is that they be passed by a majority of Members.Footnote 47 Where there have been express powers granted to the Parliament, there is an implicit assumption, given the brevity of the detail in the relevant treaty provisions, that the specifics are to be determined by the Parliament itself, and that, like the other core institutions granted the same rule making power, these rules be internally directed, in accordance with the principle of institutional balance. To get a proper sense of the powers of the Parliament, it is therefore necessary to consider the Rules of Procedure.
In total, there are 251 Rules of Procedure of the European Parliament, split into “Titles” dealing with discrete procedural topics.Footnote 48 It is only as you scroll through each of the categories covered that we begin to get a sense of how the Parliament actually exercizes the powers it has explicitly been given and has obtained additional powers that are not evident in the Treaties. For instance, in “Title II: Legislative, Budgetary, Discharge and Other Procedures,” we see the centrality of the committee process to policy development and scrutiny before the first reading stage of the legislative process. Rule 132 fleshes out the Parliament’s role in the selection of new Justices to the Court of Justice and the General Court as established by Article 255 TFEU. The veto power of the Parliament vis-à-vis new accession agreements, set out in Article 49 TEU, is expanded upon in Rule 89, giving the Parliament a real say in the content of said agreements through the work of its Committees. This dynamic of limited formal treaty-based provisions being expanded upon or implemented by the Parliament through its Rules of Procedure, has been a feature of the EU since its inception, and, as others have argued, has been an informal driver of the Parliament’s growth in power and importance.Footnote 49
While the abovementioned rules clearly expand upon the powers given in the Treaties through specification, others have no basis in the Treaties at all or go beyond a mere specification by ascribing to the Parliament a role that contradicts or substantially supplements that which is set out in the Treaties. The most striking example of this is Chapter 3 of Title II, which establishes the interinstitutional negotiation process, also known as “trilogues,” between the Council and Committees of the Parliament. This Title specifies the involvement of “rapporteurs” and “shadow rapporteurs” in negotiations with external institutional actors, as well as the rules by which such negotiations are to take place.Footnote 50 Nowhere is this power to be found in the Treaties, with the basis for these rules stemming from an Interinstitutional Agreement, although the Rules go further than the Interinstitutional Agreement, with shadow rapporteurs a unilateral Parliamentary invention.Footnote 51
Another example is the duty to “consult” the Parliament on a range of appointments. Considering appointment process of the Court of Auditors, while Article 286(2) TFEU obliges the Council to “consult” the Parliament on Member State nominees for the positions, Rule 132 sets out a quasi-confirmation process. Nominees are invited to the Budgetary Control Committee to answer questions, before then being approved or rejected by the committee, voted on in Plenary, which then, in the case of a negative decision, “shall ask the Council to withdraw its nomination and submit a new nomination.”Footnote 52 Although there have been exceptions, this consultation requirement has transformed into a quasi-approval power, with rejection of the Parliament’s Plenary decision by the Council the exception rather than the rule.Footnote 53 Unlike the trilogue process, the transformation of the meaning of the word “consult” was effected by the Parliament acting unilaterally through its Rules of Procedure.
This same process has been used by the Parliament in its efforts to insert itself into the process of appointing heads of Union external delegations. Rule 120 gives Parliament the power to question and vote on prospective nominees despite there being no constitutional basis for parliamentary involvement.Footnote 54 This rule had the effect of pushing former High Representative Ashton to adopt an agreement with the Parliament to ensure that the European External Action Service would respond positively to any requests by the Parliament for hearings with heads of delegations and EU Special Representatives.Footnote 55
What is clear from the above is that one can only obtain a proper sense of the role of the Parliament in the EU constitutional order, and the EU constitutional order itself, by considering its Rules of Procedure. While often implementing or extending upon vague treaty provisions or interinstitutional agreements, the Rules of Procedure have also been used as unilateral tools for the expansion of parliamentary power into domains that find little or no basis in the Treaties.
E. Direct and Indirect Constitutional Change and the Rules of Procedure
How, you might be asking, does the above discussion relate to the topic of constitutional change? To explain the relationship to constitutional change, I make the distinction between direct and indirect forms of change. By direct constitutional change I am referring to both: the actual means of change as compared to the constitutionally mandated and culturally accepted means of change; and the extent to which said change affects the substance of the power relations between the core institutions of the EU—the “ends.” Given the EU has an explicit formal procedure for constitutional change, and could be considered, according to the models presented in the introduction as an example of a “distrust mode” constitution—constitutional change is strictly regulated and complicated, as demanded by the sovereign Member States—this Article contends that anything beyond mere implementation or specification constitutes informal constitutional change. The “ends” of change are measured by considering the formal role given to the Parliament in the Treaties, vis-à-vis the other institutions of the EU, against its actual role, as generally expressed in the Rules of Procedure. Where the ends effected by the adoption of a particular procedural rule are not clearly external—affecting the balance of powers between the Council, Commission and Parliament—but possess some indirect external effects—non-binding oversight, scrutiny or involvement in negotiation processes—then this Article suggests that such change should be referred to as “creeping constitutional change.” Where there is a clear attempt to obtain power over core constitutional processes—budgets, the legislative process, appointments and the election of the executive, et cetera—that are not provided to the Parliament in the Treaties or in Interinstitutional Agreements, then this Article suggests such change should be referred to as “distinct constitutional change.” While drawing the line between the two forms of direct change may be difficult, it can be demonstrated through examples, with the next section focused-on specific examples of “distinct” constitutional change.
By indirect constitutional change I am referring to the ideational element to constitutionalism touched-upon in my Introduction and in Professor Craig’s quote on the nature of the fourth category—the power the Parliament has, through its own rules, over the constitutional culture of the EU. Given the lack of any express treaty-based provision for the kind of “culture” the EU constitutional order ought to have (this is an organic process), rather than thinking about indirect constitutional change as “change,” we might better think of it as the role the Rules of Procedure have in the “development” of the political component to what has been long considered to be a legally-oriented constitutional culture.
I. The Rules of Procedure as a Vehicle for Direct Constitutional Change
Having set out the distinction between “creeping” and “distinct,” direct constitutional change, in this Section we consider these sub-categories in more depth. But before doing so, it is important to clarify the nature of the power under consideration here, not just its means and ends. To the extent that the rules in question have external effects, these effects are convention-based. That is, the Parliament relies upon the inaction and implicit acceptance, or the active acceptance of the other institutions influenced by the creeping or distinct change, for said change to be effective, because there is no positive constitutional basis for it.Footnote 56 In this way, the effects of these rule changes on the functioning of the EU constitutional order are, to borrow from Carrozza and Besselink, “achievement markers” or “snapshots,” of what is a dynamic constitutional process driven by the political institutions of the Union outside the bounds of what is meant to be constitutionally permissible.Footnote 57 These political settlements then serve as the foundation for further informal constitutional creeping,Footnote 58 which too, is convention based, and is then often eventually incorporated into the constitution via amendments to relevant institutional agreement, particularly in the post Lisbon era when formal treaty change is practically impossible.
The two examples chosen to demonstrate the dynamics of this form of change are: the rules governing the approval of incoming Commissioners; and the power of the Parliament to reject the whole draft budget.
1. Appointment of an Incoming College of Commissioners
The European Parliament’s involvement in the appointment of the incoming President of the Commission and the College of Commissioners is an example of distinct, direct constitutional change that has since turned into further creeping constitutional change. Up until 1979, the Parliament had no role in the election of the President of the Commission or the College. Under the Treaties, the appointment process was the sole domain of the Member States. In 1979, with the introduction of direct elections for MEPs, the Parliament unilaterally altered its Rules of Procedure to establish a process for debating and voting on the incoming Commission. This confidence vote was conducted when the new Commission appeared to present its programme.Footnote 59 Despite there being no constitutional basis for such a confidence vote, and no constitutional requirement that it be followed, the authority of this practice was recognized and formalized by Member States via the signing of the Stuttgart Solemn Declaration in 1983. This declaration not only solidified the practice sparked by the unilateral procedural rule change, but also allowed for greater Parliamentary involvement in the choice of President—with the agreement establishing a consultation requirement for Political Group leaders.Footnote 60 The procedural rule change also provoked the establishment of a practice which began in 1993 to wait for the confidence vote of the Parliament before the Commission was sworn in.Footnote 61
From the 1980s onwards, there has been further creeping constitutional change, facilitated by the constant interplay between pure practice, procedural rule changes, formal treaty changes and the formation of interinstitutional agreements. For example, the Maastricht Treaty formalized the practice of the Parliament voting on the incoming Commission as a whole.Footnote 62 Parliament expanded upon this power by amending its Rules to establish committee hearings, which individual Commissioners would be expected to appear before prior to the confidence vote in Plenary. Despite not being required to, the incoming Santer Commission in 1994 agreed to adhere to the procedural rules establishing the process.Footnote 63 These rules gained even greater authority during the Barroso Commission controversy in 2004, when the President-elect was forced to withdraw his College and present a new one, after the hearings exposed the extreme views of Mr. Buttiglione, one of Barroso’s nominees, meaning that the Parliament was likely to vote down the proposed College.Footnote 64
Fast-forward to today, we see that, formally, under the Treaties, the Parliament has the power to “elect” the President of the Commission,Footnote 65 and undertake a “vote of consent” on the Commission as a whole.Footnote 66 Nowhere in the Treaties is the confirmation process mentioned. This has instead been left to an Interinstitutional Agreement, signed in 2010, updated in 2018, and due for further revisions, which has then been extended upon in the Rules, with the addition of Annexure VII in 2016 and additional changes made at the beginning of the current Parliament.Footnote 67 While the Interinstitutional Agreement sets out the general requirement that the President-elect and Commissioners-elect attend the hearings, and that they be conducted in a spirit of openness, one has to look to the Rules themselves to see just how extensive a role the Parliament plays. Rules 128 and 129 set out the confirmation process. Where the constitutional creeping has occurred, going beyond the Interinstitutional Agreement, is in respect to the basis for assessing each of the nominees. In addition to assessing for competence, independence, knowledge of their portfolio and their communication skills, the Rules establish a quasi-gender balance requirement, worded in the following terms: “Parliament shall have regard to gender balance. It may express itself on the allocation or portfolio responsibilities by the President-elect.”Footnote 68 This point was missed in much of the discussion of the newly elected Von der Leyen Commission’s failed attempt to achieve gender balance in the College, after a number of Member States refused to put forward a male and female nominee for each position.
In addition to the gender balance assessment criteria, and rules relating to disclosure expectations,Footnote 69 processes are also set out for further questions to be proffered and information to be requested, and, most importantly, for commitments to be drawn from the candidates.Footnote 70 A “monitoring of commitments” mechanism has been established via the “annual structured dialogue” with the Commission, as set out in Interinstitutional Agreement.Footnote 71 While the Agreement refers to this mechanism as a “dialogue,”Footnote 72 the Rules of Procedure refer to this as a “review”—something more akin to the executive oversight conducted by parliamentary committees across the parliaments of Member States, and another clear example of constitutional creeping.Footnote 73 Such a review not only relates to the policies put forward in the Commission’s program, but also the policy commitments made to individual committee members during the confirmation hearings.Footnote 74 Additionally, the Parliament has given itself the power to recall individual Commissioners if the substance of their portfolio responsibilities has changed, or when their financial interests have altered mid-term—the word “shall” here is used, reflecting the Parliament’s emboldened position vis-à-vis the external effect of its internal rules.Footnote 75 This is an extension of the duty to consult the Parliament, contained in Article 248 TFEU, which is all that is also referred to in the Interinstitutional Agreement.Footnote 76
To summarize, while the various alterations to the Rules of Procedure in recent times may be examples of creeping constitutional change, the event that led to the creation of this important constitutional power for the Parliament was instigated internally—via the Rules of Procedure. This distinct, direct constitutional change has reshaped the EU constitutional order, even if such re-shaping was reliant on voluntary interinstitutional compliance. The Parliament has utilized its internal rule making power to push the other institutions of the EU to recognize its role in appointing the executive and holding it to account. These powers continue to develop through other norms such as the Spitzenkandidat convention, which is the relatively settled understanding—followed after the 2014 and 2024 elections, and arguably also after 2019 depending on how the convention is framed— that the power afforded to the European Council to nominate a candidate for Commission President is to be guided by the the question of their ability to garner a majority in the Parliament, with preference to be given to the lead candidate of the largest party, followed by the other lead candidates,Footnote 77 before non lead candidates may be considered. We may see a process of formalization of this practice going forward, either via the Rules of Procedure, legislation, or in an update to the Interinstitutional Agreement (noting that the EUCO is not a party to it). Which ever way, if formalized, we should expect the same constitutional creeping process to continue.
Coming back to the point made at the outset of this Article, only one of the four typologies can explain the role of each of the institutions in this important constitutional process. That is, where the true power lies, institutionally and instrumentally, and the potential normative issues the exercize of this internal rule making power poses for the constitutional order as a whole.
2. The Parliament’s Budgetary Powers—A Unilateral Power Grab Achieved via the Rules of Procedure
An older and briefer example, but just as relevant, is the power of the Parliament over the Budget of the Union—or the Multiyear Financial Framework—which can be seen as an example of distinct, direct constitutional change. While the current Treaties provide a formal role for the Parliament with the Council in the approval of the whole Budget, this has not always been the case. The original Rome Treaty gave the Parliament limited powers with respect to the formulation and passing of the EU Budget, the right to be consulted.Footnote 78 All power sat with the Member States, acting through the Council of Ministers. In April 1970, the situation changed as the financial needs of the Community grew, leading to the Luxembourg Treaty. Article 203(6) of the Treaty gave the Parliament the power to approve the Budget, worded in the following terms, “the President of the Parliament shall declare that the budget has been adopted.”Footnote 79 Crucially, the term “budget” in sub-section 6 was to be interpreted in accordance with the agreement struck between Member States when negotiating the Luxembourg Treaty, establishing there to be a distinction between compulsory, Treaty-based or legislative-based spending needs, and non-compulsory expenditure, everything else—making up just 4% of the budget.Footnote 80 The Council was to have the last say on compulsory spending, and the Parliament—referred to then as the Assembly—was to have final say on non-compulsory spending. After years of political rankling, the Parliament amended its Rules of Procedure to create a process whereby it would hold a vote on the whole budget, not just the non-compulsory components, before the President of the Parliament would give their approval. As the treaty-based provision didn’t make a distinction between the compulsory and non-compulsory components of the budget, the Parliament also chose not to, even though this was clearly against the spirit in which the treaty provision was to be read, thereby granting itself an informal constitutional veto power over the whole Union budget.Footnote 81
Like the initial move by the Parliament with respect to the establishment of committee hearings for the grilling of commissioners designate, the Parliament’s ability to exercise the power it sought via a change to its Rules of Procedure was facilitated by the Council’s decision to adhere to the Parliament’s vote on the whole budget. The Parliament held on to the power it obtained because consensus was required to amend the Luxembourg Treaty to omit or amend the offending Article 203(6), and consensus was not able to be achieved.Footnote 82 This power was subsequently folded into the Treaties through the process of formal treaty amendment and is now a settled feature of the budgetary process.Footnote 83
Once again, it is only by consulting the history of the Parliament’s use of its internal rule making powers that it is possible to understand how the Parliament came to obtain the power it now has over the budgetary process, and with it, how it has altered the balance of power between it and the Council.
II. The Indirect Constitutional Effects of the Rules of Procedure
What is the pan-European “demos,” both real and perceived? Is the EU a democratic or legal constitutional order, or somewhere in between? These are questions which have been at the heart of the ongoing debates regarding: the actionability of ideational concepts such as “constitutional identity” in so far as it relates to the future of the EU;Footnote 84 how to address the so-called EU democratic deficit;Footnote 85 and the related debate regarding the existence, or not, of an identifiable source of constituent power in the European Union.Footnote 86 Given the European Parliament’s history as a periphery institution, few legal scholars have turned their attention to the role the Parliament has played, and continues to play, in fostering more of a political constitutional culture. By constitutional culture I am referring to, “the set of institutional arrangements, practices, norms, habits of thought, and other miscellaneous features that determine how we get from the Constitution’s words to concrete consequences.”Footnote 87 By political constitutional culture, I am also referring to the level of influence the democratic institutions of the Union have over the constitutional trajectory of the Union as compared to the interpretive work of the CJEU.Footnote 88
One of the ideational means by which the Parliament has used its Rules of Procedure to effect indirect constitutional change is through the development of an EU-specific form of parliamentarianism.Footnote 89 By “parliamentarianism,” I mean the various models of parliamentary involvement in constitutional affairs that have been identified and implemented in jurisdictions around the globe—from the “executive accountability” model, linked most strongly to parliamentary democracy, to the “separation of powers” model, linked to the Presidential forms of democracy, to the classical “politics by means of speaking” model.Footnote 90 The Treaties lack a definitive statement as to the model intended for the European Parliament, beyond it having greater involvement in budgetary matters, becoming a co-legislator and having some oversight of the appointment of other key constitutional positions and processes such as treaty and accession negotiations. In terms of the models listed above, it seemingly possesses a mix of all three, with an emphasis on the first two, particularly in terms of executive accountability and legislative efficacy, as they relate to the separation of powers.Footnote 91 This can, however, only be determined by considering, amongst other sources, the Rules of Procedure.
Dealing first with legislative efficacy, the Rules of Procedure have been used to maximize the formal legislative power the Parliament does have vis-à-vis the Council and Commission by streamlining processes and reducing the potential for internal conflict to jeopardize the Parliament’s strength in interinstitutional legislative negotiations. In part, this has been done by placing the Policy Committees rather than the Plenary Chamber at the centre of policy making and legislative negotiation.Footnote 92 Each Policy Committee not only has the power to develop and scrutinize policy proposals, but also to engage directly with the Commission and Council to come to an agreement right up to the second reading stage in the Council, through the trilogue process. The Parliament’s position in these negotiations has been strengthened by amending the Rules to better ensure that agreements struck in these committee negotiations and interinstitutional negotiations survive when they make it to the Plenary floor. An example of this is the creation of the position of “Shadow Rapporteur.”Footnote 93 Such a position allows for the views of non-dominant political parties in the Parliament—there is no formal opposition recognized in the Rules—Footnote 94 to be taken into consideration during negotiations in an effort to reduce the levels of open opposition after the conclusion of the committee stage.Footnote 95 The Rules have also been tightened to prevent certain hard-Eurosceptic MEPs from utilizing performative political tactics to slow down or undermine the legislative process and/or frustrate the Commission using frivolous censure motions or by asking large numbers of questions.Footnote 96
Additionally, although not formally reflected in the Rules, but also not prevented by them, is the Cordon Sanitaire.Footnote 97 This convention-like agreement between the Europhile political blocs has, until the most recent election, prevented Eurosceptic parties of the left and right from taking key executive positions within the Parliament, including committee chairs which they could use to slow down or undermine the legislative process, as a way to de-legitimize the Union—output legitimacy being of particular importance to the EU’s popular support. Taken together, we see that the Rules of Procedure have been used to develop a peculiar approach to legislating—one that is focused on streamlining internal processes to ensure maximum influence at the interinstitutional level, which has, in turn, heightened the influence the Parliament possesses over the future direction of the European Union.
The Rules of Procedure have also been used to extend the limited formal executive oversight powers given to the Parliament in the Treaties, and see it slowly morph into a body more akin to a Westminster-style parliamentary model. While the Treaties establish the position of the European Ombudsman, a position connected to and appointed by the Parliament, and mention is also made of the ability of MEPs to ask questions of the Commission, to which the Commission must provide a response, the Treaties contain very little on formal executive oversight by the Parliament. The Parliament has, as reflected in Chapter three of its Rules of Procedure, gone beyond its formal powers and created a host of accountability mechanisms, including: special scrutiny hearings of individual Commissioners and the President of the Commission, both ad hoc and on regular intervals throughout the Parliamentary term;Footnote 98 a Westminster-style “Question Time” at each part-session for Commissioners to be quizzed on their portfolio responsibilities;Footnote 99 as well as providing party blocs with the ability to pose “major interpellations” to the Commission, Council, and High Representatives on topics that will then be debated in the Parliament.Footnote 100 Additionally, the new rules that came into effect at the beginning of the new parliamentary term, have inserted: enhanced powers for committees holding hearings into Commissioners-designate; additional accountability mechanisms to extract and monitor policy promises made; and a strengthening of Parliament’s budgetary oversight function.Footnote 101 Taken as a whole, the Parliament has built-upon its very limited formal oversight role and positioned itself as the institution responsible for keeping the executive of the Union in check during each mandate. This has not only altered the power dynamic between the Commission and Parliament in the latter’s favour, but has also, potentially, reduced the need for, and the demand for judicial intervention in the struggle between the Parliament and the Commission for power. The expansion of parliamentary power has had the effect of limiting the space available for judicial involvement. It is an example of the political arm of the constitution dragging what were once potentially disputes that would end up before the Court, into the political domain.
Given the limited tools and normative guidance provided by the Treaties, or from the Court or in legislation, the Parliament has used its Rules of Procedure to craft its own form of parliamentarianism centred on legislative efficacy and executive accountability. The ideational development has been from the bottom up—from the Parliament itself—rather than the top down—emanating from the Treaties or judicial decisions. The spillover effect of this process to the constitutional culture of the EU more generally is hard to judge but can be viewed as part of the general shift in thinking about the European Parliament from a necessary but peripheral institution to a necessary and crucially important one. The fact is that the Parliament is now a key constitutional player, and not just a semi-peripheral consultative body. Through the exercize of its rule making power, the Parliament has demonstrated that the Treaties do provide space for a kind of political constitutionalism, meaning that disputes over the effects of constitutional concepts such as institutional balance and the separation of powers are open to political contestation and resolution, and not just legal. The extent of this political space, the constitutional consequences that may flow, remain open questions, which will be explored in-part in the next section.
F. What Role, if any, is There for the CJEU in Overseeing such Constitutional Change?
On the face of the Treaties and previous decisions of the CJEU, there is little role for the Court in adjudicating the legality or constitutionality of the internal rule making processes of the Parliament, nor the rules themselves in so far as they may effect informal constitutional change. While this is not explicitly stated in any EU legal source, it can be deduced by the approach of the Court over time to the application of general principles such as institutional balance, the granting of immunities to MEPs in the Treaties, upheld by the Court, the Court’s pronouncement of the importance of the principle of the separation of powers to the EU’s conception of the rule of law. This has all, of course, taken place to the backdrop of an EU generally concerned with enhancing the profile and powers of the Parliament vis-à-vis the other institutions of the EU.Footnote 102 This is the justiciability issue to which I am referring: the ability of the Parliament to effect direct and indirect constitutional change in the EU through its internal rules, and not the formal treaty amendment process, with little potential for oversight by the institution established to guard the principles of the Treaties.
I would, however, hesitate to argue that there is no potential role for the Court. It is worth noting at the outset that the Court has intervened in disputes over the application of its Rules of Procedure in cases concerning the forming of political groups,Footnote 103 and decisions relating to keeping order in the Plenary Chamber.Footnote 104 These cases are examples of individual intra-institutional disputes rather than the inter-institutional power shifts this article is concerned with. In terms of the justiciability of the kind of constitutional change considered in this article, there are other avenues for judicial involvement, but they are limited in nature, and relatively untested. The first relates to the CJEU’s approach to the enforcement of the principle of institutional balance, and its non-related jurisprudence on soft law. The second relies-upon the Court’s ability to turn to the constitutional recognition of interinstitutional agreements in Article 295 TFEU, and potential breaches of terms in those agreements that find expression in the Rules of Procedure.
First, the Court has been willing to invoke the principle of institutional balance, as implied in Article 13(2) TEU, in a number of disputes regarding alleged constitutional overreach by institutions of the EU.Footnote 105 Summarizing the case law at the time, Lenaerts and Verhoeven define institutional balance to mean: (i) each institution should enjoy a sufficient independence in order to exercise its powers; (ii) institutions should not unconditionally assign their powers to other institutions and (iii) institutions may not in the exercise of their own powers encroach on the powers and prerogatives of other institutions.Footnote 106
Connected with the principle of the separation of powers,Footnote 107 democracy,Footnote 108 and arguments regarding the structural integrity of the Union,Footnote 109 one can see a pathway for the formulation of an argument by one of the other institutions of the EU that the Parliament is acting outside of its constitutionally enshrined mandate by binding other institutions through its Rules of Procedure. The Court has, in cases such as MFA, been willing to consider the Rules of Procedure of the Council of Ministers in coming to a conclusion as to whether it had breached the principle of conferral.Footnote 110 The Court has also stated that institutional practice cannot be used to alter the Treaties, as this risks upsetting the balance said rules provide between the insitutions of the EU—in this case there was an explicit contravention of a treaty provision requiring the Commission to follow a particular procedure.Footnote 111 Indeed, when coupled with the Court’s construction of an “effects test” to determine the justiciability of soft law instruments,Footnote 112 there is potentially an arguable basis upon which the effects of the direct form of informal constitutional change are deemed to tip the balance too far in favour of the Parliament, as judged against the Treaties, thereby affecting the substance of the principle of institutional balance. This line of reasoning—the justiciability of the effects of the rules rather than the rules themselves—is, however, muddied by case law referring to the “prerogatives of the parliament,”which arguably includes its power to make its own rules,Footnote 113 the recognition of the broad discretion enjoyed by the Parliament over matters pertaining to its internal functions,Footnote 114 and a relatively small but growing number of cases on the immunities enjoyed by MEPs in which the CJEU, and the European Court of Human Rights (ECHR).Footnote 115 Indeed, the Court has been at pains to refer to the fundamental importance of the “independence of Parliament” to the existence of a functioning pan-European representative democracy, as rooted in Articles 2 and 10(1) TEU.Footnote 116
The other approach is for one of the other institutions to bring a claim of a breach of an interinstitutional agreement upon which the rule in question, in the Rules of Procedure, is based and is giving effect to. An example could be the Interinstitutional Agreement struck between the Council, Commission, and Parliament on “Better Law Making.” Should the Parliament act through its Rules in a way that produces effects that impinge upon particular provisions of this Interinstitutional Agreement, arguably, the Court could have a role in interpreting and determining the appropriate application of said Agreement.Footnote 117
While all the above would seem to suggest the potential for some oversight of this informal driver of constitutional change, as mentioned earlier when referencing Professor de Witte, it is necessary to consider the practical hurdles to the application of said theory. Firstly, there is the issue that either the Commission, Council or European Council would have to bring a case against the Parliament, as this is about potential infringements on their powers. As I have set out above, any case they may run would need to deal with the effects of said rule, rather than the rule itself. So, any litigious attempt to limit the power of the Parliament to effect constitutional change would be limited to an incursion on the principle of interinstitutional balance, or the breach of a provision of an interinstitutional agreement. The ability of the Parliament to effect constitutional change through its internal rules could not, seemingly, be limited more generally. This leads to my next point, which concerns matters of EU realpolitik.
Given the interinstitutional nature of any potential dispute, the decision as to whether a case ought to be brought is a political one. Considering the current political climate—concerns regarding the democratic deficit and efforts to bolster the position of the Parliament—and the important informal role the Parliament plays as a driver of ideational change/development in the EU, it is difficult to conceive of a scenario in which the Council or Commission, in particular, would be willing to bring a case involving the Parliament using its rules to improve oversight and accountability of the Commission or any of the other institutions, or to try and streamline the legislative process. The politics of interinstitutional litigation could be different, however, if during this or a future Parliament, the situation were to become unworkable, and the Rules of Procedure adopted to facilitate cooperation and efficiency, were co-opted and exploited to try and embarrass or undermine the leaders of the other institutions, or to slow the legislative process down.
Additionally, and related to the above, there is also the practical issue—with constitutional and legal ramifications—of the potential gap that may emerge between that which is agreed to in interinstitutional agreements, and whether or how the Parliament decides to implement these agreements by way of its own Rules of Procedure. For example, the Interinstitutional Agreement on Better Law-Making doesn’t envisage the existence of preparatory “shadow meetings” in parliamentary committees, nor the role of “shadow rapporteurs.”Footnote 118 This being the case, these meetings and positions are important to the legislative process in the Parliament, as a way of building consensus in policy committees to strengthen the Parliament’s negotiating position with the Council.Footnote 119 Should a dispute arise over the extent to which the Rules of Procedure establishing this shadow process are holding up the legislative process, or undermining the quality of the legislation produced, thereby formally falling afoul of Article 1 of the Interinstitutional Agreement, based on the above analysis of the Court’s unwillingness to interfere in the internal processes of the Parliament, it would seem highly unlikely that the Court would be open to constraining the rule making powers of the Parliament through the enforcement of general provisions of the Agreement. Given this, one has to question the extent to which the formal recognition of Interinstitutional Agreements in the Treaties has achieved what it set out to do, which was to ensure judicial oversight of this important informal process of interinstitutional rule formation. The Parliament maintains the ability to go beyond the terms of what has been agreed to, with limited potential legal ramifications.
So, while there may be some scope for judicial oversight of the Parliament’s internal rule making power, it is limited in important ways, with some of those limitations self-imposed by the Court. On the one hand, such self-restraint could, depending on your perspective, be considered commendable–breathing political life into an overly formalist legal constitutional culture. On the other hand, given the lack of an ability for any of the other institutions of the Union to dissolve the Parliament should its current or future makeup lead to it becoming more unruly and unpredictable, it ought also be somewhat concerning that the only other institution capable of potentially curbing the excesses of this internal rule making power, is dealing itself out of interinstitutional disputes that centre on said powers through its interinstitutional balance and democracy jurisprudence. Consequently, a lacuna of legal constitutional accountability seems to exist.
G. Conclusion
The world we live in is pluralistic and complex; there is nothing black and white about it. Constitutions, as both guides for and reflections of this lived reality, are incapable of being fully understood, explained, or insightfully altered unless we possess the tools we need to detect, deconstruct, and assess all that exists in the gray. The purpose of this Article, by focusing on the informal role of the Rules of Procedure of the European Parliament in effecting direct and indirect constitutional change in the EU, has been to emphasize the existence and importance of the oft-forgotten fourth modality of constitutional change, and how it relates to the other three. I have sought to raise the stature of the Rules of Procedure as norms not only worthy of academic attention by EU constitutional scholars, but in need of attention, given their demonstrated power to alter the balance of powers between the core institutions of the EU, and, to drive ideational change. This is only heightened by the limited judicial oversight of such change, the inability to dissolve the Parliament, and the difficulties associated with reversing or formalizing such change through referenda-based treaty amendments in the current political climate.
To conclude, while the informal, relatively unchecked, constitutional change effected by the Rules of Procedure is yet to cause major problems for the functioning of the EU constitutional order—indeed, most would argue that it has enhanced its functioning—it may not always necessarily be a one-way street. Just as internal rules can be used to expand the Parliament’s power to improve legislative efficacy and executive oversight, they can also be utilized to wield the Parliament’s newfound power to disrupt and undermine the Union from within. Unlike formal constitutional change, all that is required to effect informal constitutional change through the Rules of Procedure is a slight shift in the mood of the electorate, and/or a shift in the prevailing culture of the Parliament. While the other institutions of the Union provide some form of a check on the ability of these internal rules to have external effects, the increased politicization of the EU, in particular the rise and entrenchment of EU party politics, means that, going forward, there may be less appetite to get in the way of certain politically advantageous rule changes. While the risk of this post-the 2024 elections may be remote, it ought not be completely discounted looking further into the future.
Acknowledgements
I presented a draft of this article at the “Between Narratives and Reality Conference” in Maastricht in June of 2024. I would like to thank the organizers and participants of this conference, particularly Professor Bruno de Witte, for their feedback. I would also like to thank the external reviewer for their constructive comments, as well as my PhD supervisors, Professors Giuseppe Martinico and Giacomo Delledonne at the Scuola Superiore Sant’Anna, Pisa.
Competing Interests
The author declares none.
Funding Statement
No specific funding has been declared in relation to this Article.
Open access
