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Democratic control of the Council of MinistersLord, Christopher

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Democratic Control of the Council of Ministers 125

Christopher Lord (Reading, UK)

Democratic Control of the Council ofMinisters

Dieser Beitrag untersucht den Begriff der „dualen Repräsentation“ und den darin enthaltenen Anspruch,dass einzelne Mitglieder des Rats der Europäischen Union von ihren nationalen Parlamenten politischzur Rechenschaft gezogen werden können, während der Rat als Ganzes im Rahmen eines Systems der„checks & balances“ dem Europäischen Parlament verantwortlich ist. Der Beitrag evaluiert eine Reihemöglicher Beschränkungen der Kapazität nationaler Parlamente, das Verhalten ihre eigenen Regierun-gen im EU-Rat zu kontrollieren, einschließlich der Entscheidungsregeln der Union, der Intransparenzdes Rates, von Informationsasymmetrien und der Struktur der nationalen politischen Systeme. Was dasEuropäische Parlament anlangt, argumentiert der Beitrag, dass dessen Macht schon dadurch beschränktist, dass es den Rat nicht kontrollieren, sondern nur über ein System der „checks & balances“ beaufsich-tigen soll. In dem Ausmaß, in dem diese Beschränkungen ihrerseits die Politisierung der Parla-mentarierInnen und deren Wahl auf der Grundlage von Wettbewerb und einer für das Funktionieren derUnion relevanten Auswahl verhindern, stellt die „duale Repräsentation“ selbst ein Hindernis für dieEntwicklung „direkter“ Repräsentation in der EU-Arena dar.

Keywords: representation, democracy, Council of Ministers, European Parliament, national parlia-mentRepräsentation, Demokratie, Rat der Europäischen Union, Europäisches Parlament,nationales Parlament

Österreichische Zeitschrift für Politikwissenschaft (ÖZP), 36 Jg. (2007) H. 2, 125–138

1. Introduction

The draft Treaty establishing a Constitutionfor the European Union contained a section en-titled the ‘democratic life of the Union’ (A1-46). After proclaiming that ‘the functioning ofthe Union shall be founded on representativedemocracy’ the section stated that ‘citizens aredirectly represented at Union level in the Euro-pean Parliament’ and ‘Member States are rep-resented in the European Council by their Headsof State or Government and in the Council bytheir governments, themselves democraticallyaccountable either to their national Parliaments,or to their citizens’ (Official Journal of the Eu-ropean Union, C310/1-474, 2004). Yet, theclaim that the Union is open to dual democraticrepresentation and control became common

place in the statements of member governmentsand Union institutions long before the Consti-tutional Treaty. Typical of the genre is TonyBlair’s contribution to the future of Europe de-bate in 2000. After claiming that ‘the directlyelected and representative institutions of thenation states – the national governments andparliaments – are the primary sources’ of demo-cratic control at Union level, Blair went on toargue that ‘the European Parliament is’ none theless ‘a vital part of the checks and balances ofthe EU’ (UK Government 2000).

This article evaluates the notion that mem-bers of the Council of Ministers can be indi-vidually responsible to national democratic in-stitutions whilst being collectively checked andbalanced by the European Parliament. Theevaluation assumes that public control with po-

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litical equality are the core attributes of democ-racy (Beetham 1994, 28; Weale 1999, 14) andthat popularly elected representative bodies arenecessary – though not always sufficient – tosecure those attributes. This, in turn, raises ques-tions of institutional design that are best intro-duced by means of the following quotation fromJohn Stuart Mill’s Representative Government(1972 [1861], 229):

It is an open question what actual functions … shouldbe discharged by the representative body. Great va-rieties are compatible with the essence of representa-tive government, provided the functions are such asto secure to the representative body the control ofeverything in the last resort.

In effect, then, Mill assumes that public con-trol can be multidisciplinary (it can take a vari-ety of means) provided it is comprehensive inscope (it covers all public policy) and it is sin-gular (it is exercised by a single representativebody). Although this last assumption of singu-larity is typical of parliamentary systems (Strøm2003, 66), the notion of dual representation atUnion level clearly departs from it. If, indeed,there is any substance to dual representation itwould imply the Union has some similaritieswith the multiple competing centres of publiccontrol associated with presidential systems,though with two differences. First, the Uniondoes not of course have a single chief execu-tive. Second, the different representative bod-ies with a controlling role in EU matters belongto different political systems and constitutionalorders. Attempts to co-ordinate incentives andnorms to produce specific governance standardsare thus likely to be more complex, uneven andproblematic than in single state systems.

In spite of such differences, it is understand-able why multi-polar forms of public controlmight be thought best for the Union. First, theabsence of a European Union demos probablyprecludes the concentrated forms of public con-trol associated with conventional parliamentarypolitics.

Second, a dispersion of controlling powersbetween mutually watchful representativeselected at different levels may be a good sec-

ond-best solution (Héritier 1997), so long asthere are constraints on how far any representa-tion at Union level can be ‘direct’ in the fullsense of the term. Even members of the onerepresentative institution that is directly electedat the Union level do not often seem to be electedon the basis of competition and choice relevantto the operation of the Union itself (Reif/Schmitt1980; though, also see Schmitt/Thomassen2000). We will return to this problem in the con-clusion.

Third, the Union, arguably, typifies devel-opments in modern governance that have calledinto question the possibility – as GiandomenicoMajone (2005, 85) puts it – of ‘control beingexercised from one fixed point on the politicalspectrum’. Organisation of expertise needed foreffective policy delivery increasingly requirespolicy-makers to operate in networks whichchallenge the political and administrative chainsof delegation by which responsibility to repre-sentative bodies has been secured in the past.Thus, in the case of the European Union, repre-sentative bodies may secure less control by fol-lowing formal demarcations of who is responsi-ble for what; and more by recognising that thereal locus of decision-making may often lie inthe collaborations and shared assumptions thatbring together policy specialists from differentUnion institutions, from the national and Unionlevels, and even from the private and publicspheres (Jachtenfuchs 2001; Kohler-Koch 1996).

Such conditions of procedural and substan-tive complexity may not invalidate conventionalaccounts of representation that emphasise a needto relate all issues to all others, and relate thatblend, in turn, to common sense understandingsof the needs and values. But greater complexityin the executive processes they seek to controldoes require representative bodies to groundtheir general understandings of policy problemsin access to more specialised forms of expertisethat can only be cultivated through divisions oflabour between representatives themselves. Onthe one hand, the thematic complexity of policymay require those divisions of labour to bemulti-disciplinary (i.e. organised for the accu-mulation and deployment of different control-

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ling skills). On the other, the spatial complexityof policy may require the divisions of labour tobe multi-level (i.e. to operate simultaneously atthe EU, national and sub-national levels).

In sum, then, dual representation amountsto a claim that national parliaments and the EPshould interact to produce satisfactory stand-ards of public control, and that neither shouldbe expected to be sufficient on its own. Yet, theroles in Union matters of national parliamentsand of the European Parliament have hithertobeen studied more in isolation than in interac-tion. To correct this would be a huge undertak-ing. This article attempts a modest beginning.In the hope of motivating and facilitating fur-ther research into where the limitations of thetwo components of dual representation are mu-tually compounding, mutually compensating orneither, the article evaluates the individual re-sponsibility of Council Members to nationalparliaments (section 2) and the collective ca-pacity of the EP to check and balance Councildecisions (section 3). A concluding section thensummarises shortcomings in the two roles.

2. Responsibility of Individual CouncilMembers to Ministers to NationalParliaments

Whatever their role in Treaty authorisation,are national parliaments in any position to ex-ercise continuing control of Council decisions?The broad facts of their involvement are well-known. Under a legally binding protocol to theAmsterdam Treaty, draft legislation, Commis-sion White and Green Papers and Communica-tions, and all documents related to the ‘creationof an area of Freedom and Justice’ (mainly JHA)have to be forwarded to national parliaments sixweeks before they are put on the Council’sagenda (Treaty on European Union, protocol 9).In some Member States, control of the Union’sagenda can be further aligned with the needs ofnational parliaments through scrutiny reserves,which limit the right of ministers to agree mat-ters in the Council that are still under consid-eration in their parliaments.

Yet, national parliaments are quite differentin the diligence of their scrutiny and in theirpowers to act on it. Only some can issue in-structions their governments are either legallyor politically obliged to follow. Following the2004 enlargement, the Conference of the Euro-pean Affairs Committees of the Parliaments ofthe European Union (COSAC) classifies Aus-tria, Denmark, Estonia, Finland, Hungary,Latvia, Lithuania, Poland, Slovakia, Sloveniaand Sweden as Member States whose parlia-ments can mandate governments to take a par-ticular position in the Council. Of these COSACdescribes all but the Austrian and Hungarianparliaments as having arrangements for system-atic mandating where ‘governments are in prin-ciple obliged to present a negotiating positionto the committees on all pieces of draft legisla-tion to be adopted by the Council’. The Lithua-nian parliament classifies issues as ‘red’, ‘yel-low’ and ‘green’ in the expectation that in thefirst two cases its government will present itwith a negotiating position for parliamentaryapproval 15 days before a Council decision(COSAC 2005a, 12). Also worth noting is thatthe Dutch and German Parliaments have par-tial mandating powers (respectively over pillarthree decisions and matters touching on thecompetence of the Länder). Indeed, the Ger-man Länder demonstrate how ‘democratic prin-cipals’ can even be incorporated into nationaldelegations to Council meetings. For all the re-mainder of cases not mentioned in this para-graph, national parliaments, have, in the wordsof a report prepared for the Convention, ‘moreor less effective systems for expressing theirviews on a legislative proposal, while leavingtheir respective governments free to decidewhether to take them into account’ (EuropeanConvention 2002, 6).

Still, whatever their powers, national par-liaments are widely believed to experience com-mon constraints in exercising public control overthe behaviour of their own governments in theCouncil. The paragraphs that follow analyseconstraints that relate to the Union’s decision-rules, the opacity of the Council, informationalcosts of scrutinising another political system,

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and the varied character of executive-legislaturerelations in Member States.

The relationship between Council votingrules and the role of national parliamentspresents something of a puzzle. Although theempowerment of the European Parliament hasbeen justified on the grounds that governmentscannot be held responsible to their own parlia-ments for decisions on which they may havebeen out-voted in the Council, national parlia-mentary involvement in Union matters has notdecreased with the development since the 1980sof a more majoritarian Council. To the contrary,it is only in the last twenty years that the prac-tice of designating at least one national parlia-mentary committee with responsibility for Eu-ropean Community Affairs has been general-ised to most Member States. Most telling of all,the national parliaments of all but two of the 13Member States which joined in 1995 and 2004(Cyprus and Malta) chose to use their influenceover Treaty ratification to secure some powersto mandate the behaviour of their governmentsin the Council.

This increased national parliamentary in-volvement may well be a response to the greaterweight and visibility of Council decisions in theordinary lives of voters in the post-MaastrichtEuropean Union. In some Member States it mayalso be the product of an increased politicisationof Union issues in the processes by which na-tional parliamentarians are elected and competefor office. It is thus possible that greaterEuropeanisation of the domestic arena hasstimulated national parliamentary involvementin Union matters at the very moment that insti-tutional developments have made the Europeanarena less tractable to their control. It would,however, be a mistake to over-state how farmajority voting in the Council departs fromprocedurally ideal conditions for national par-liamentary control. For the most part, the Coun-cil continues to decide by consensus even wheremajority voting is available to it (Mattila/Lane2001).

Turning from decision-rules to problems oftransparency, modern scholars identify asym-metries of information as amongst the principal

means by which modern executives dominatelegislatures (Krehbiel 1991). Thus it is alreadya challenge to national parliaments that the com-plexity of Union policies and institutions oftenrequire a special expertise that is costly for thosewho have no permanent presence within theUnion’s political system to acquire and sustain.As one MEP interviewed for the DemocraticAudit of the EU put it: ‘It is an institutional sys-tem that you really do need to experience di-rectly if you are to understand it. I have oftenfound that those who visit for even 2-3 days havea grasp that is not shared by others’ (Lord 2004,181).

Such difficulties are compounded by theclosed nature of Council decision-making. Al-though the results of Council votes are published(European Community Treaty, A. 207 (3)) op-portunities for publics and their representativesto follow the deliberations of the Council priorto voting are more limited. At the time of writ-ing, the Council only holds open meetings atthe very beginning and at the very end of Co-decision – when the Commission presents itsproposals and when the Council agrees a finaltext (COSAC 2005b, 44). Not only does thischallenge the principle that all legislation shouldbe a public act, but the restriction of open meet-ings to Co-decision, rather than Consultation,bizarrely implies that the closer the Councilapproximates the role of sole legislator withoutcheck and balance from the publicly visibleEuropean Parliament, the more secretive shouldbe its deliberations.

In addition to raising the cost of monitoringthe behaviour of their governments in the Coun-cil, non-transparency may dampen the incen-tive for national parliamentarians to invest theirtime into the scrutiny of Union decisions. Givenevidence of successive Eurobarometers that theCouncil is the least known of the four mainUnion institutions (Lord 2004, 57) – eventhough it is, arguably, the most powerful – andfocus group evidence that several national pub-lics see their own governments as mere bystand-ers to Union decisions (European Commission2000), voters are unlikely to reward or sanctiontheir parliamentarians for scrutinising Council

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decisions, or even to be aware that opportunityis available.

Even, however, if they had perfect informa-tion about Council deliberations and decision-making, national parliaments would still face thecosts of converting that information into a fulland effective scrutiny. As Tapio Raunio (1999,188) remarks, only national parliaments whoseEACs meet weekly are likely to be engaged inline-by-line scrutiny of Union business. In thecase of those parliaments which practice whatCOSAC calls ‘documentary scrutiny’ (the sift-ing of all texts received under the Amsterdamprotocol) a small and stable group of representa-tives has to be delegated to perform the task onbehalf of the parliament as a whole if monitor-ing is to benefit from the likelihood that under-standing of the Union is governed by increas-ing returns: that it is, in other words, a capabil-ity that grows with use. Yet a tension can beexpected between such a division of labour andthe general-purpose nature of both national par-liaments and of the Union’s own decision-mak-ing. Several national parliaments have thus feltcompelled to attempt a difficult balance betweendiffusing the coverage of Union affairs across arange of committees, whilst concentrating a co-ordinating role in the hands of a few representa-tives with a more permanent focus on Europeanissues (COSAC 2005a, 13-15).

The EU’s extended policy cycle presents afurther challenge. In addition to monitoring ac-tual decisions of the Council, national parlia-ments are likely to be constrained in their con-trolling role if they are not also active whenchoices are structured in interaction with theCommission, restructured in interaction with theEuropean Parliament, and then fleshed out intodetailed implementation rules through comi-tology. Some examples from the experience ofthe Scandinavian parliaments illustrate the scaleof the effort that may be required.

At the agenda-setting stage, the DanishFolketing holds public hearings on Green andWhite Papers. Parliamentary resolutions basedon the hearings are then forwarded to the Com-mission (Folketinget 2002, 10). For its part, theFinnish Parliament tries to influence the prepa-

ration of Council decisions by writing reportsthat it then expects national officials to take intoaccount when participating in COREPER orCouncil working groups.

In order to handle the converse risk that theUnion’s multi-stage decision-making may driftsubstantially from the options on which its hashad an opportunity to express a view, the Swed-ish parliament (Riksdag) expects Ministers toremain over the course of Council bargainingin continuous contact with the Chair of the EAC,who will, in turn, telephone the leading com-mittee member from each of the other politicalparties to consult on any proposed deviationfrom the parliament’s original position. Minutesand voting records of Council meetings are thenused to check that the government has kept toits commitments. The Swedish Government also‘has to submit a written report of the positionthat it has taken within 5 days of each Councilmeeting, explaining what positions it has backedand why’. Where the Government departs froma mandate, the Riksdag’s EAC reserves the rightto take a vote on whether the deviation was jus-tified and all MPs can pick up on any embar-rassment of the government through ‘inter-pellations’ in the full parliament (Hegeland/Neuhold 2002, 6).

By way of a postscript, it is also worth men-tioning that even arrangements as elaborate asthe foregoing are limited in how far they canfollow national parliamentary scrutiny throughto what is in many ways the final stage in Euro-pean Community rule-making, namely the useby Member States of Comitology committeesto oversee the Commission in the preparationof guidelines for implementation. Since Comi-tology is not covered by the Treaty protocol ondocuments which must be supplied to nationalparliaments for their scrutiny, national parlia-ments must be sufficiently organised to followit for themselves by inspecting the Commis-sion’s register of Comitology. A possible rea-son why they have only rarely been motivatedto do this in practice (COSAC 2006, 28) is thatComitology only comes into play once Com-munity measures already have the force of lawand all Member States are any how obliged to

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proceed with them in some form. Moreover, anysystematic attempt to extend scrutiny to Comi-tology would hugely increase the time and re-sources national parliaments have to give toUnion matters. As COSAC points out, the Un-ion passes ten times as many implementingmeasures as it passes full pieces of legislation.In 2004, for example, the figures were respec-tively 2625 and 278 (cit, 26-7).

In any case, it is unlikely that rigorous scru-tiny procedures are sufficient to hold govern-ments individually responsible to their nationalparliaments for their behaviour in the Council.Much depends on how far governments canthemselves control scrutiny committees. That,in turn, depends on the overall structure of ex-ecutive-legislative relations in each MemberState, and on party disciplines. Consider theexample of the United Kingdom. Although ithas experienced a politicisation of Union issuesthat has motivated other national parliaments topress for indirect participation in Council deci-sions (Johanssen/Raunio 2001), the West-minister Parliament arguably combines one ofthe most painstaking with one of the most in-consequential of scrutiny procedures. Whilst theCommons scrutiny committee can force a de-bate of the whole House, rules on parliamen-tary time limit the number of occasions this ispossible, and, in any case, the government ma-jority is always available to defeat a challenge(Giddings/Drewry 1996). Indeed, the Govern-ment can use its majority to over-ride a scrutinyreserve and proceed to a decision in the Coun-cil before the Commons committee has com-pleted its work. There were 22 over-rides in thesecond half of 2004 alone (COSAC 2005a, 11).Austria provides a further example. Althoughthe only national parliament with the power toissue legally binding mandates, party disciplinesensure this is rare in practice (Hegeland/Neuhold2002).

In other cases, powerful controls over thebehaviour of national governments in the Coun-cil are better understood as effects of prior ex-ecutive weakness in domestic systems, as op-posed to transposable causes of national parlia-mentary strength in the European arena. Na-

tional parliamentary mandating evolved in Den-mark in response to conditions that are mostunlikely to be reproduced in many other Mem-ber States. Some means had to be found of de-termining how to use the Council decisionsrights assigned to a Member State where, asDavid Arter (1999, 119-20) puts it, Govern-ments are typically so much in the minority thatit is ‘opposition parties … that make decisionsin practice’.

In sum, then, this section has appraised dif-ficulties in holding members of the Council in-dividually responsible to national parliamentsthat arise from Council voting rules, the opac-ity of the Council, the opportunity costs in par-liamentary time of scrutinising Union decisionsand variations in executive-legislature relationsacross Member States. It suggests that the firstconstraint has been over-stated. The second andthird constraints are important, though probablybest understood as an aggravation by the Un-ion’s complex institutions of a general difficultyfaced by modern parliaments, namely asym-metries of information in their dealings with theexecutive bodies they are supposed to scruti-nise. The fourth constraint affects some nationalparliaments significantly more than others.

A little noticed corollary of this last point isthat exclusive reliance on national parliamentswould risk political inequality. How well indi-viduals can be represented at Union level willdepend on where they live. How far they canlook to national parliaments to monitor Councildecisions and enforce standards of responsibil-ity depends on executive-legislature relations ineach Member State. Where QMV really is used,much will also depend on the decision weightsassigned to each country, a point not lost onthose commentators who use power indices todemonstrate that the 5 largest States of the EU-25 are between 8 to 9 times more likely than the5 smallest to be pivotal to winning or blockingcoalitions of the Council (Paterson/Silársky2003, 10; Strøm et al. 2003, 668).

Nor are national parliaments likely on theirown to meet the deliberative conditions for de-mocracy. Short of Europeanising themselvesinto an inter-parliamentary network that allowed

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each to reflect on the preferences of all, nationalparliaments can only secure control over indi-vidual Council Members in ways that open themto Edmund Burke’s (1975 [1774], 175) famousobjection: ‘what sort of reason is it in which thedetermination precedes the discussion, in whichone set of men deliberate and another decide,and where those who form the conclusion areperhaps three hundred miles distant from thosewho hear the arguments?’

Of course, one possible riposte to all of thisis that the responsibility of individual CouncilMembers to national parliaments is not supposedto produce collective democratic standards atthe European level. Matters would, however, bemore serious if the converse could be demon-strated, namely that the collective operation ofthe Council unnecessarily compromises indi-vidual responsibility to national parliaments.More systematic research is needed to investi-gate whether this is indeed the case. But surveyand interview evidence already provides primafacie cause for concern. COSAC surveys andplenaries suggest national parliaments do feelthemselves constrained by faits accomplis whichemerge from bargaining relationships and deci-sion-rules of which they can influence but a part.Typical is a complaint by the representative ofthe Irish Dail that texts often have an air of hav-ing already ‘been passed by governments’ be-fore they are forwarded to their national parlia-ments (COSAC 2001, 33). Even national par-liaments with the most rigorous procedures forrendering their own governments individuallyresponsible for their contributions to Union de-cisions, acknowledge a need to adapt their ownparliamentary control to distributions of powerand preferences between other Council mem-bers. That, for example, is the implication of aclaim by an official of the Danish Folketing thathis own parliament has adapted to QMV by con-centrating its scrutiny on those cases where itsgovernment is most likely to be pivotal in theCouncil (Lord 2004, 177).

By way of postscript it is, of course, possi-ble that things could change significantly if any-thing akin to the proposal in the Draft Treatyestablishing a Constitution allowing national

parliaments to challenge Commission propos-als on the basis of subsidiarity is adopted. Un-der such circumstances there would be strate-gic advantage – and thus a competitive pres-sure – on Member States to ensure their parlia-ments have the power and expertise on Unionissues to network with others to form the one-third of national parliaments needed to trigger achallenge.

3. Checks and Balances? The EuropeanParliament and the Council

If there are limits to how far the Council canbe made accountable through the relationshipof its individual members to their national par-liaments, does the Union compensate for thesein arrangements for the Council to be account-able as a body to the EP? Responses to a surveyfor the Democratic Audit of the European Un-ion indicate MEPs are much less confident oftheir public control of the Council than the Com-mission. MEPs on average rate their capacity toinfluence the Council at 3.23 on a scale of 0–10. MEPs find the Council less transparent thanthe Commission and better placed to evade re-sponsibility by blaming someone else. Whenasked to indicate how far non-transparency andblame-shifting were obstacles to accountability,MEPs answered 5.4 and 3.71 in the case of theCommission and 8.57 and 6.47 in that of theCouncil (all figures on a scale of 0–10). MEPsalso feel Council Members see themselves asprimarily responsible to their national parlia-ments, while Council Presidencies vary in theirwillingness to explain decisions to the EP. Giventhat MEPs are less confident of their powers tocontrol the Council than the Commission, manyare understandably nervous that legislative andexecutive powers may be drifting from the sec-ond to the first (Lord 2004, 183).

But how justified is the pessimism of MEPsabout their powers to control the Council? Doesa more favourable assessment emerge once weacknowledge that ‘supervisory’ forms of con-trol are neither possible nor appropriate in therelationship between the EP and the Council,

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whilst a system of mutually constraining checksand balances is feasible?

If the EP really does have the capacity tocheck and balance the Council, we would ex-pect confirmation in studies of its legislative andfinancial powers. Given that the Commissionfrequently exercises its legislative initiative inresponse to what member governments perceiveto be a need for Union-level law-making, it isby no means far-fetched to interpret Co-deci-sion as conferring a power on the EP to denythe Council its legislation in a polity whose mainbusiness is rule-making (Majone 2005, 37).Council Members may accept significant EPamendments rather than ‘return to go’ in alengthy legislative process that may have de-pended on unique windows of opportunity indomestic politics or on a complex ‘log-roll’ be-tween themselves.

In addition to conferring veto powers, Co-decision may allow the Parliament ‘agenda-set-ting’ opportunities. As George Tsebelis (1994)first pointed out in his study of legislative pow-ers that have subsequently been subsumed intoCo-decision, it is ‘procedurally easier’ for theCouncil to accept Parliamentary amendments.Whereas it may only need a qualified majorityto adopt as a final text a revised Commissionproposal incorporating EP amendments, it needsunanimity to substitute an alternative of its own.

Yet, in spite of some high profile clashesbetween the EP and the Council in individualCo-decisions, the aggregate data can be read assuggesting that the EP is somewhat tame in itsefforts to check the Council in the legislativeprocess. It is relatively rare for Co-decisions tobe lost on account of an EP veto. It is also in-creasingly common for Council, EP and Com-mission to collude through trialogues to man-age the legislative process. A declining propor-tion of Co-decisions ‘go to the wire’ in the senseof requiring a Conciliation committee to be con-vened between the Parliament and Council(COSAC 2005b, 48- 51).

In any case, many of the Parliament’s pow-ers amount to a series of ‘bounded choices’.Assuming, that it does not often want to vetomatters out-right, and that its main objective is

to pass the measure but with amendments of itsown, the EP can only check and balance theCommission and Council within limits deter-mined by the distribution of preferences withinthose other institutions. Amie Kreppel (2000)has analysed this most clearly in relation to leg-islation. However, the bounded nature of choicesavailable to the EP can also be illustratedthrough the example of its budgetary powers.In relation to annual budgets:

– The EP has no powers over the revenue com-ponent of the budget;

– the EP’s powers of amendment are onlyprocedurally strong in relation to the 54 percent of the budget consisting of non-com-pulsory expenditure;

– even then, the EP is only able to vary non-compulsory expenditure up to a ‘maximumrate of increase’ of about 3 per cent a year;

– the EP has to keep to a number of sub-ceil-ings laid down in seven year financial per-spectives (Laffan 1997).

EP amendments typically only increase theoverall budget by around EUR 1m or one percent of the total. Since this roughly correspondsto what the Council normally shaves off theCommission’s proposal in the first place, someMEPs have suggested that the whole processapproaches an empty ritual: ‘the Commissionpresents a proposal, the Council takes a sliceoff the proposed amount, the EP adds a bit morein, and we are supposed to come up with some-thing wonderful in conciliation’ (KathalijneBuitenweg MEP, Debates of the European Par-liament, 11 December 2001).

Moving beyond annual budgetary rounds, afurther difficulty concerns the longer-term sevenyear frameworks which govern the finances ofthe Union. As the Parliament has noted as re-cently as its report on the 2006 inter-institutionalagreement on budgetary discipline, a seven yearcycle necessarily means that financial frame-works are not aligned with five year mandatesof the Commission and the Parliament. In theEP’s view such an alignment would significantlyimprove political responsibility for the expendi-

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ture of the Union’s resources (European Parlia-ment 2006a, 7).

Still, a case can be made that bounded choiceis precisely what is to be expected in a systemof checks and balances whose purpose is pre-cisely that no institution – the EP included –should be able to dominate the others. A morefundamental difficulty may be that demarcationsbetween decisions where the EP does and doesnot have the power to check and balance theCouncil sometimes appear more expedient thanprincipled.

Paul Magnette’s (1999) description of theEU as ‘semi-parliamentary’ might be a harm-less statement of the obvious were it simply acorollary of another bon mot, namely PhilippeSchmitter’s observation that the Union reallyamounts to a ‘plurality of polities at differentlevels of aggregation’. However, the involve-ment of the EP does not map neatly on to a dis-tinction between Union decisions that employ‘supranational’ and ‘intergovernmental’ modesof aggregation. On the one hand the EP is ex-cluded from parts of the first pillar where a casecan be made that decision rules, preference dis-tributions and power relations operate with suf-ficient autonomy in the European arena to re-quire parliamentary control at that level. On theother hand the EP pops up unexpectedly in pil-lars two and three (Lord 2005), yet without aconsistency likely to satisfy those who believethat all decisions taken at Union level should becontrolled by a Parliament at that level and withexpertise of it. The following paragraphs elabo-rate.

Andreas Maurer’s (2003) distinction be-tween ‘strong’ (Co-decision and assent proce-dures) and ‘weak’ (Consultation procedure) par-liamentary inclusion implies that even underpillar one Council decisions are still only selec-tively checked and balanced by the EP. Includedamongst cases where the EP is only consultedare some instances where the Council decidesby QMV, even though, as seen, that particularcombination of decision rules implies that par-liamentary control may be weak at both the na-tional and the European levels. As the FinnishParliament has put it, the ‘democratic deficit

becomes most obvious where the Council takesdecisions by QMV without the European Par-liament being able to prevent the legislationcoming into being’ (quoted European Parlia-ment 1997, 12). It is also worth noting that theEP complains about absence of full budgetaryas well as of full legislative Co-decision. It isunclear how real is the difference between com-pulsory and non-compulsory expenditure andwhy that distinction should justify conferringfewer powers on the EP over the first than thesecond. Indeed, the EP suspects the real inten-tion is to ‘cordon off’ the Union’s main expendi-ture policy – the CAP - from its control (cit,16).

Yet even where its legislative and financialpowers are at their maximum, the EP has – atleast until recently - argued that Comitology al-lows Member States partially to negate the ben-efits of using a directly elected Co-decider as acheck and a balance on the Council. In the EP’sview, Comitology committees do not ‘merelyimplement’ but ‘modify and ‘supplement essen-tial aspects of legislative provisions’ (EuropeanParliament 1998, 6/2003, 7). Thus they allowadministrators and experts appointed by theMember States to make substantive choicesabout the allocation of values that should be Co-decided by the Parliament and Council. It re-mains to be seen how far a new inter-institu-tional agreement concluded in 2006 will resolvethese problems. The rapporteur on the agree-ment, Richard Corbett, concluded that it did putthe EP on an ‘equal footing’ with the Councilin being able to scrutinize and then reject im-plementing measures which amount to delegatedlegislation, rather than mere policy execution.However, Corbett also notes that the inter-insti-tutional agreement does not go so far as theConstitutional Treaty which would also haveallowed the Parliament to revoke the delegationof powers once made (European Parliament2006b, 5).

Turning to the second and third pillars, theTreaty only requires the Council to consult theEP on CFSP and JHA decisions and to reportannually on the overall development of the twopolicies. Yet, the EP has expressed concern that

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the Council has used CFSP and JHA to delegatepowers to unaccountable agencies. Councilagencies do not have executives whose mal-administration can occasion censure by the EP.Nor are they covered by general legislation onadministrative standards in Union institutionssuch as the regulations on the processing of per-sonal data and access to documents. Moreover,the exclusion of the ECJ from all of CFSP andmuch of JHA means that lacunae in responsi-bility to elected bodies are not compensated byjudicial accountability or individual rights pro-tections (European Parliament 2001b).

In the case of JHA, Council agencies includeEuropol (police co-operation), Eurojust (pros-ecuting magistrates), and the Schengen Secre-tariat (Frontier management). Although they aremainly co-ordinating mechanisms, Councilagencies seem on occasions to exercise discre-tionary powers. The Europol Director, for ex-ample, has been authorised by the Council toenter discussions with third countries on behalfof the Union (OJ.C. 106, 13 April 2000). Aboveall, the agencies are key sites for the transposi-tion of JHA orientations into policing on theground. Eurojust has been authorised to initiatejoint investigations and prosecutions in casesof cross-border crime, and to make joint rec-ommendations to Member States on changes tocriminal law in each country. Plans to create ajoint Police training College – and to exchange‘best practice’ – imply norms of policing mayin the future be partially defined through col-laborative processes at European level, ratherthan exclusively through agencies that are lo-cally or nationally accountable. Amongst pri-orities the Council set for the College were‘training sessions for senior national police of-ficers on the basis of common standards’ (Eu-ropean Parliament 2001c).

4. Conclusion

EU institutions and its Member States oftenclaim that public control of the Union is possi-ble through a system of dual representation.Amongst other things, this implies that the in-

dividual members of the Council can be account-able to national parliaments, whilst the decisionsof the Council as a whole can be checked andbalanced by the EP at the level of the EU’s po-litical system itself. Clarity of exposition de-mands that the two processes be analysed sepa-rately from one another, and this article has notattempted to deviate from that conventionalpath. Yet, as discussed in the introduction, thenotion of dual representation is ultimately aclaim that national parliaments and the Euro-pean Parliament can interact to produce satis-factory democratic control of Union decisions.Not only is there little academic research intothe interaction of the two roles, but, one sus-pects, political practice has itself only tested anarrow range of the possibilities for either co-operation or mutual watchfulness in the rela-tionship between national parliaments and theEuropean Parliament in their monitoring of theCouncil.

Still, some conjectures can already be at-tempted. To the extent that an understanding ofwhat can be changed and what cannot contrib-utes to institutional design, a useful starting pointmight be to hypothesise what constraints on dualrepresentation are likely to be structural in thesense that they can be expected to arise evenwhere national parliaments or the EuropeanParliament perform their allotted roles. For ex-ample it is hard to see how EP’s complaint that‘neither the Council nor the European Councilcan incur ultimate political censure, since novote of confidence is possible either in nationalparliaments or the European Parliament’ (Eu-ropean Parliament 1997, 5) could ever be satis-fied within a dual system of representation.National parliaments can only control individualCouncil Members and in a system of shared rep-resentation it is hardly for the EP to control bywhom Member States want to be represented inthe Council. Dual representation is thus closelyrelated to Joe Weiler’s (1997, 275) observationthat ‘critically there is no real sense in whichthe European process allows the electorate to“throw the scoundrels out”… to replace one set(my emphasis) of “governors” by another’. Dualrepresentation can accommodate the power of

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national parliaments to remove individual Coun-cil Members and that of the EP to censure theCommission but with respect to the residue leftover after these two powers have been taken intoaccount – control of the Council and EuropeanCouncil as collective bodies – it requires confi-dence in means other than dismissal from of-fice.

If dual representation constrains any repre-sentative body from exercising an over-archingpublic control of the Union, what structural con-straints does it imply for national parliamentsor the EP only? On the strength of this articlewe might predict that even national parliamentswith strong controlling powers over the behav-iour of their governments in the Council willstruggle on their own to deliver the politicalequality or the deliberative conditions for de-mocracy at the European Union level. We mightalso predict that any difficulties national parlia-ments face in constraining the collective opera-tion of Council decision-making will limit theirindividual powers.

Turning to the European Parliament, it fol-lows directly from the very notion of dual rep-resentation that the EP will only be able to checkand balance the Council within certain bounds.From that we might, in turn, predict that dualrepresentation will operate as a structural limi-tation on direct representation itself. As seen,the Union has failed to develop the politics ofdirect representation – in the sense of electionscontested on choices relevant to the operationof the Union itself – although it has a directlyelected Parliament. A possible reason for this isthat the opportunity to decide who is going toexercise the European Parliament’s part sharein the powers of an institutional order whosecapacity to re-allocate values is incremental,dependent on high-levels of consensus, and,arguably, substantially pre-decided by priorprocesses of Treaty formation is a weak mobi-lising force (Bartolini 2005; Blondel et al. 1998,251-3; Mair 2005). In contrast, national parlia-mentary elections designate (if only indirectly)the range of key legislative and executive of-fices in what Kaare Strøm (2003, 65) calls a sin-gular chain of delegation. Indeed, they even

confer a part share in Union decision-making, afactor that may paradoxically even depress turnout in European elections in those MemberStates where national parliaments are thoughtbroadly capable of controlling the contributionof their own governments to Council decisions.Yet as also seen, it is hard to imagine any depar-ture from dual representation given the Union’sunder-developed demos and its need to negoti-ate its policies with its Member States if theyare to be carried out on the ground. As PhillipDann (2006, 238) puts it, ‘since EU law is im-plemented by national administrations’ thosesame administrations have to be given ‘voice’in the ‘making of laws’.

All of this suggests a theoretical frameworkfor appraising options for institutional reform.In contrast to Fritz Scharpf’s (1999, 188) well-known suggestion that the European levelshould concentrate on meeting output conditionsfor democracy (capacities for collective actionin economic and social policy) and the nationallevel on meeting ‘input’ conditions (demos,parties, media and so on), this article has dis-cussed an alternative division of labour con-structed around the distinction between indi-vidual and collective responsibility. Taking ac-countability as an essential ingredient of respon-sibility, further development of this division oflabour might be appraised for what it could doto encourage participants in the Council to givereasons for their decisions subject to threats ofsanction where the public or its representativesconsider explanations inadequate.

A few observations about the political op-portunity structure all this implies for reformare in order, even though space does not permitconsideration of concrete options. Any successon the part of one Parliament at either level inimproving the quality of ‘reason-giving’ forCouncil decisions will be a public good with allthe qualities and shortcomings that implies. Tothe extent that the development of expertise andthe extraction of information are not cost-free,there will be a tendency for the public good tobe under-supplied. But once the information isavailable other parliaments cannot be excludedfrom it.

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Turning now to the issue of sanctions, dif-ferent possibilities suggest themselves at the twolevels. Sanction through loss of office can, ashas been seen, only be arranged through theapplication to individual members of the Coun-cil of Ministers of whatever arrangements na-tional political systems make for ministerial re-sponsibility; or, indeed, through a spill-over, sofar untested to the best of my knowledge, fromCouncil decision-making to domestic electoralcompetition. Sanction through the denial ofpolicy outcomes may, however, be best arrangedthrough the European Parliament. As thingsstand, national parliaments may be individualveto-holders where the Council of Ministersvotes by unanimity; and they may be veto-hold-ers in combination where the Council votes byQMV. The latter, though, is a somewhat capri-cious controlling power, since it depends onthose who happen to have an interest in exer-cising control happening to be those with man-dating powers over the behaviour of their gov-ernments in the Council. The need to look tothe EP to sanction by denying policy outcomesmight point to further extensions in legislativeCo-decision or – as was attempted by the Con-stitution – full Co-decision over the budget. Itmight also suggest more Co-decision in themaking of specific appointments and even inthe setting of mandates for particular agencieswhere policy execution is not delegated to theCommission. Finally, sanction through loss ofreputation – through plain political embarrass-ment – might be reinforced through the devel-opment of a fierce culture of political interro-gation at either level. Surely there is scope herefor both national parliaments and the EuropeanParliament to make greater and more co-ordinated use of committees of enquiry intopolicy failures and the contribution, if any, ofCouncil decisions to them.

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AUTHOR

Christopher LORD, Professor of Politics at the Uni-versity of Reading. Research interests: democracy and

legitimacy and the European Union. Recent publications:A Democratic Audit of the European Union (2004,Houndmills, Basingstoke); Democracy and the EuropeanUnion (1998, Sheffield); Democracy in the New Europe(with Erika Harris 2006, Houndmills, Basingstoke) andLegitimacy and the European Union (with DavidBeetham, 1998, London).

Address for correspondence: Department of Poli-tics, The University of Reading, Reading, RG6 6AA,The United Kingdom.

E-mail address: c.lord@reading.ac.uk.

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