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

Institute for European Studies, Free University of Brussels

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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

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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 striking1. 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

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

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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

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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 Council2. 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 2See Europe Documents, 27 may 1998, n° 2089.3Bull. CE, 1981/2, pp. 48-49.

5

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 Government5.

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

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.

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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 nothing6, 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

6Hence 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.

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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

7The 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.

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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.

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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 PSE8. There is here a typical parliamentary coincidence between the informal PPE-PSE coalition which

is reached in most legislative votes9 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

apparent10, and the vote of approval of the whole college confirmed the stability of the two-thirds centrist

majority.

8More 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. 9Estimations 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).

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Approval of Jacques Santer Appointment of the Commission

Yes No Abstention Yes No Abstention

PSE 45 140 5 177 28 9PPE 153 0 1 158 9 4

ELDR 7 24 6 31 4 13GUE 0 22 0 0 14 16RDE 24 1 1 19 0 3NI 6 12 0 8 14 0EN 0 8 8 0 0 14

ARE 0 20 0 0 13 0Greens 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.

11The 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.

11

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

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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

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

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EP13. 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 states14.

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 treaty15. 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 5PPE 7 138 2ELDR 4 26 2ARE 12 3 2GUE 25 0 0EN 12 3 0NI 17 1 1UPE 5 15 1Greens 19 0 2

13Two 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).14Again 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).15In 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.

14

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 2PPE 70 91 21ELDR 32 6 0ARE 4 13 2GUE 18 3 0I-EdN 14 0 0NI 18 10 0UPE 14 11 2

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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

16

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

17

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

impossible16.

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

16Though 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).

18

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

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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”.

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