An impending constitutional crisis is built into the EU system. Will the Parliament outwrestle the European Council?

, by Juuso Järviniemi

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An impending constitutional crisis is built into the EU system. Will the Parliament outwrestle the European Council?
Freestyle wrestlers at the 2016 Summer Olympics. Photo: Mohammad Hassansadeh / Tasnimnews

Checks and balances are a defining characteristic of Western democracies. Because giving dictatorial powers to one person or group of people rarely ends up well, power is wielded in multiple places at the same time: think of the typical triangle of legislature, executive and judiciary, for example. In turn, this means that there need to be rules for what each of these different institutions can do, and how they hold each other to account – stating these rules is one of the main purposes of a constitution.

Some of the most acrimonious conflicts in politics are exactly about these inter-institutional relations. One day, the EU will have a proper taste of a constitutional crisis, too – perhaps sooner than we think. Namely, the elected European Parliament will be pitted against the heads of state in the European Council. A federalist should side with the Parliament in this showdown.

When the rules are unclear, fighting begins

An unclear constitution is the most fertile ground for this kind of conflict. The UK is a notorious example. Because the country has no written constitution, throughout the Brexit process the Parliament has had to battle with the government in order to win rights: right to vote on the final Brexit deal, right to access government documents, et cetera. The BBC has repeatedly spoken about a Brexit “constitutional crisis” (see here and here). Earlier, in the 17th century, King Charles I was beheaded in a battle over the respective powers of the monarch and of the Parliament.

Antonio Tajani’s successor as the European Parliament President will – hopefully! – not have his troops slay Donald Tusk’s successor as European Council President. However, the EU’s constitutional rules, as set out in the treaties, also provide the kind of room for interpretation that presages conflict.

Namely, the nomination of the European Commission President is a confusing affair. Legally, the European Council makes its proposal for the President, and the European Parliament takes the final vote. Moreover, the process should ‘take into account the outcome of the European elections’.

Re-read the last two sentences: you don’t need to be a constitutional expert to realise that sooner or later the Parliament and the European Council will pick up a fight over who really gets to decide on the Commission President. Will the Parliament just rubber-stamp the decision first made by the European Council? Or will the European Council be obliged to propose the candidate that it knows the Parliament will prefer? That’s a question you can’t answer just by reading the treaties.

One way out would be either the European Council or the European Parliament giving in voluntarily. However, that’s not how politics usually works. A Mexican standoff is the more likely outcome: the two parties will have to face each other down.

Public engagement is crucial – maybe sooner than we think

In Western movies, a Mexican standoff is usually broken up by a surprising event, like an outsider entering the situation. In an EU constitutional crisis, that someone should be the people. Politics is not meant to be a power game between elites, but something that ordinary citizens can engage in. Here we have a clear-cut debate that citizens could participate in: who do you stand with in this duel?

Needless to say, those who want a Europe of citizens rather than one of governments – a federal Europe – would stand with the MEPs they have just elected. The power to decide EU leadership has traditionally sat with the governments, and it’s now ‘the people’, through the Parliament, who are trying to snatch that power. In this endeavour, the Parliament will need all the public support it can get – just like the British MPs who are being branded as “traitors” by those supporting the government feel empowered by the encouraging letters they receive from citizens.

An EU constitutional crisis may sound like a bizarre and therefore distant prospect. Yet, in some form of it, this might be a reality in just a few weeks. If the heads of government propose a Commission President who did not announce their intentions before the elections by running as a lead candidate, the Parliament would have every right to vote down such a ‘dark horse’. (Or to paraphrase Nigel Farage, such a “quiet assassin of European democracy”.) This will take courage, and will amount to wrestling down the European Council, in the spirit of a true constitutional showdown.

The next weeks will mark a new episode in shaping the fundamental principles of how the EU works. Do we live in a Europe of citizens, or Europe of governments? I believe in a Europe of citizens – if it takes a crisis to achieve that, then so be it.

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