Ton van den Brink
Executive decision-making has come to dominate at the EU level. On top of that, at the national level, the balance between governments and parliaments has equally tilted in favour of the former as a result of EU integration. Extensive scholarly attention has turned these imbalances into a classic of EU studies, one could say. This edited volume has much to add to the existing body of literature. It takes as a starting point the contrast between the Treaty of Lisbon’s promise of parliamentarisation of the EU and the actual practice in which executive dominance seems to increase rather than to be diminishing. Whereas existing research has sometimes focused too exclusively on the EU level, this book takes the multilevel nature of the issue seriously, for example by including insightful contributions on the executive-legislative balance in the – often overlooked issues of – transposition and implementation of EU law. Other chapters zoom in on specific (ex) EU Member States.
The edited volume is particularly compelling in its empirical approach. This approach has been implemented throughout, but is particularly visible in a number of case studies which explore selected areas of EU law and policy. These chapters are distinct and original in the perspectives they adopt, and offer rich analyses. An excellent set of authors has been selected and which could not be better suited for this task: legal scholars with a strong eye for how EU law works in practice and political science and public administration academics which are well-versed in the legal aspects of the legislative-executive relations. The selection of these case studies, however, suffers from a lack of policy variety, as no less than six out of the total of eight case studies deal with the external dimension of EU law and policy (trade and the common foreign and security policies). This limited variety of case studies naturally impacts on the conclusions that have to be considered necessarily partial for this reason. Equally remarkable is that whereas the editors in the introductory chapter compellingly discuss crisis as a major factor that impacts executive-legislative relations in the EU, it has apparently not been included as a case selection criterion. Admittedly, some crises (most notably the economic crisis and Brexit) are discussed but only in a limited way and other crises not at all (the migration crisis in particular seems to be missing).
To what extent has the EU legislature defined the response to the economic crisis and how does this relate to executive action by for example the European Central Bank? This may be an example of a question which may seem to fit a volume on executive-legislative relations well. However, the approach in this book is somewhat different as the concept of ‘legislature’ is mostly equated with that of ‘parliaments’. This may be obvious from the perspective of full parliamentary systems (such as that of the UK) but for political systems which are based on a system of separation of powers this may be somewhat confusing. In other words, this is really mostly a volume on the ‘Power of Parliaments’, not so much on how to avoid power concentration and balancing the core. Some chapters indeed address the legislative function in the EU full-front (in procedural and substantive senses) whereas others (such as Griglio’s chapter on accountability of the Council and the European Council) fit better this broader ‘Power of Parliaments’ approach. Also ‘the executive’ could have benefited from some conceptual clarity. Lindseth in his epilogue hints at the distinction between the administrative executive (subordinate to the legislature, often characterised by technocratic decision-making) and the political executive with a more independent position vis-à-vis the legislature (p. 304). This would have been a helpful distinction, allowing for a perhaps more diversified assessment of imbalances and the possible recalibration thereof.
This leads to a remark on the normative assessment of the findings. Especially from a more Trias Politica-inspired perspective (within which the executive would also be entitled to its own autonomous sphere of competence) one could question the general and unconditional call for more parliamentary involvement. Indeed, this is what Lindseth in his epilogue points at as well – an epilogue that offers much more than a general reflection on the findings of the authors and a discussion thereof in light of the COVID-19 crisis (which logically could not be addressed by the other authors). What is the essence of each domain, he asks (p. 307). It is not necessary to subscribe to his particular position in the discourse on the nature of the EU to be able to agree that such constitutional position-taking matters. As does the choice of the desired democratic system I would add.
Is more parliamentary involvement always better? Some authors already qualify this call for practical reasons (parliaments can for example simply not cover everything) but more fundamental qualifications would be appropriate too, including for particular areas and in specific situations. Foreign policy would be an example: this is often an executive prerogative. Another would be emergency decision-making. Such a more refined normative assessment could equally encompass the variety of parliamentary rights and roles, oversight, (co-) deciding and so on.
Does this count against the book? To the contrary: it is the great strength of this edited volume that it offers such invaluable input – based on excellent empirical work – for addressing these normative and conceptual questions and for putting them in the right light. I am therefore certain it will find its way in the broad field of EU Legal Studies and Governance. But I hope the book will do more than that. I hope it will equally benefit the work of the Conference on the Future of the EU. With its thorough analyses of key elements of the EU’s law and governance, as well as exploring the potential of possible solutions, it should not be overlooked in that context either.
Ton van den Brink is Full Professor and Jean Monnet Professor of EU legislative studies at the University of Utrecht