Much of the public, inside and outside Europe, have an impression of the European Union as an immensely complicated governing apparatus, impossible for a layperson to understand. As an American who’s been working as a journalist in Europe for 15 years, I try to simplify it by comparing it to the US system, which both Europeans and Americans know well. The European Commission is like the White House, I say. The European Parliament is like the House of Representatives, and the European Council (made up of one representative from each member state) is like the Senate. For Germans an even more apt comparison is commission to chancellery, parliament to Bundestag and council to Bundesrat.
But the effort at simplification stumbles when confronted with the realities of the EU’s most problematic institution. Because though it functions much as the upper house of a legislature, the European Council fancies itself an executive. The result is a system where no one’s quite sure who’s in charge, which has rendered the EU incapable of responding to the numerous challenges it is facing today.
1950s Design
The problems created by the EU’s most secretive and dysfunctional institution are examined in a new book published this month by Dutch Liberal MEP Sophie in 't Veld, The Scent of Wild Animals. In it, she argues that the intergovernmental model pushed by the EU national governments in the council, designed in the 1950s and perpetually in conflict with the community model of the directly elected European Parliament created in 1979, is pushing the union toward an early grave of irrelevance.
“Over the years the EU has gotten many new powers, and yet it’s becoming increasingly paralyzed,” in 't Veld said at the launch of her book in Brussels last week. The council is a “UGO: Unidentified Governing Object,” Europe’s “most powerful body but a wholly dysfunctional and unaccountable body.”
“It’s democratically free-floating in space, with no mandate of its own, not accountable to anyone, and cannot be made to resign as a body. Some of its members [like Hungary’s Viktor Orbán] have a rather dubious reputation, and yet they get to take all the important decisions that affect us all. It’s a kind of government but it doesn’t meet basic democratic standards.”
The premise of her book is that the main thing holding the EU back is its national governments sitting in the council, and that this has led to a paralysis in which the union lurches from crisis to crisis with just-in-time bare minimum solutions, or puts off deciding solutions indefinitely because of the council’s insistence on getting 27 unanimous votes even when it’s not required. This has exacerbated the debt crisis, the migrant crisis, the climate crisis, the pandemic crisis, and the rule of law crisis—and also manifests itself in Europe’s humiliation in Afghanistan.
Von der Leyen Smells the Power
The worst part, Sophie in 't Veld says, is that European Commission President Ursula von der Leyen, who owes her position to the national governments that imposed her on the European Parliament in 2019, has allied with the council against the parliament and is refusing to hold countries to account—which should be the commission’s main role as guarantor of the EU treaties. “You can see with von der Leyen, she can smell where the power is,” in 't Veld said. The situation is so concerning that she believes the parliament should threaten to force von der Leyen to resign if she doesn’t get tougher with the council, particularly on the rule of law situation with Poland and Hungary.
The commission, in 't Veld writes in her book, has in the past seen itself as the defender of citizens in the face of national governments. But in recent times the commission has turned into an enabler of national governments against the interests of citizens—a trend started with two-term Commission President José Manuel Barroso and continued today with President von der Leyen, who comes in for particularly scathing criticism in the book.
The author notes that since 2004 there has been a steep decline in the number of infringement procedures launched against national governments for violating EU law. While in the past the two “community” institutions, parliament and commission, saw themselves as allies against the intergovernmental council, today the opposite is true. “The commission clearly does not feel it has a duty of enforcement to the citizens. It considers governments rather than citizens to be its only legitimate interlocutors,” she writes.
The current standoff between von der Leyen and the European Parliament is illustrative of this, she says. The parliament is taking the commission to court for its failure to enforce an EU law that took effect at the start of the year tying EU funds to upholding the rule of law. The mechanism must be used against Poland and Hungary now, MEPs say. But von der Leyen is refusing to use it yet.
Legislature or Government?
The role of the European Council has never really been clear, and the constitutional reform that came with the Lisbon Treaty in 2009 only made the situation more confusing by separating off the European Council of prime ministers and presidents as a separate institution from the EU Council of ministers. In practice they are still effectively one institution. But the ministers have been made steadily more and more subservient to the leaders and increasingly issues are bumped up from ministerial to leaders’ level (a practice which Italian Prime Minister Mario Draghi has pushed back on since taking office in February).
The council is like the Bundesrat in Germany in that it represents the constituent states of the EU. The makeup of both is affected only by changes in power in the member states, and they therefore have no legislative term and no way for citizens to hold the institution to account as a whole. Their democratic mandate derives from the elections held at member state level. By contrast, the European Parliament is like the Bundestag, and is the only directly-elected EU institution that can be held to account as a whole by citizens every five years. But while in Germany (and most other EU countries) the lower house selects the government and is the more powerful institution, for the EU the unelected upper house selects the government (commission president and college) and is the far more powerful institution.
They key difference between the council and the Bundesrat is while the latter is made up of representatives chosen by the state governments (as used to be the case for the US Senate before direct elections started in 1913), the former is made up of the governments themselves. That means that energy decisions, for instance, are taken by the 27 national energy ministers who travel to Brussels or Luxembourg for Energy Councils a few times a year.
That the representatives in the council aren’t permanently based in Brussels and are mostly concerned with domestic politics makes a big difference. They are advised by the Permanent Representations of each member state in Brussels, which do most of the legislative work. But the “Perm Reps” are not very permanent at all, staffed by rotating crews of people from national foreign services, treated as diplomatic embassies rather than democratic institutions representing constituents.
Because of this, the representatives of the council act in one of the most extreme versions of secrecy seen in any Western democracy. There is usually no way for citizens to know how their country voted in the council, or even what stance their minister took in a debate. Previously, the council redacted the minutes of their meetings so that the names of individual countries were blacked out. After the European Court of Justice found this practice to be antidemocratic in the AccessInfo ruling, the council responded by simply leaving out the names of member states from the minutes altogether.
The result is that while the council is the most powerful political institution in Europe, most citizens have never even heard of it. And national governments like it that way, because it means they can escape scrutiny for the decisions they take at the European level. “Ironically whereas many Europeans know the ins and outs of the wafer-thin majority of the Biden administration in the US Senate, they are mostly clueless as to the majorities in the council in the EU,” in 't Veld writes in her book. And while citizens are vaguely aware that there are quarterly summits of EU prime ministers and presidents in Brussels, they have little conception of what the European Council is or what it does—partly because it is so ill-defined. As in 't Veld writes, “The treaties should clarify the nature of the European Council: executive or legislative? Who are they accountable to, and who gives them a mandate?”
Capitals Blocking Solutions
Unsurprisingly, as a member of the European Parliament in 't Veld believes it is her institution that must lead the change. But its members are too timid, consistently backing down from battles with the other institutions as they did in 2019 when they voted to abandon the Spitzenkandidat process by confirming von der Leyen, despite swearing they would never confirm a president who wasn’t a candidate in the election.
Part of the problem, she says, is that MEPs are dependent on national parties for their political livelihoods. Just under 60 percent of MEPs belong to a government party, she notes, and so their bosses are sitting in the council. The MEPs’ political dependence leaves an “inherent inequality” between the two legislators. It’s something that could have been resolved by having transnational lists in the 2019 parliament election, but this was overruled by members of the council—notably French President Emmanuel Macron. As a result, “The commission knows it has nothing to fear from parliament,” but it has everything to fear from council.
Citizens are currently being consulted about what changes should be made to EU governance in an exercise called the Conference on the Future of Europe, which in 't Veld calls a “consolation prize” to the parliament for its surrender in the Spitzenkandidat battle. In theory it is supposed to be something like the constitutional convention of the early 2000s which led to the Lisbon Treaty. But national capitals have already handicapped the exercise to almost guarantee it will not end with any result. National governments have ruled out treaty change resulting from the conference, and have encouraged national media to ridicule the exercise, to the extent that it’s getting any coverage at all.
Blaming "Brussels"
“Their haughty dismissal of treaty change is intended to hide the fact they have a vested interest in the current institutional set up, which serves national governments over citizens,” in 't Veld notes. “National politicians are in no hurry to properly inform and educate citizens about Europe. They prefer to keep the myth of remote, technocratic, and weak Europe alive. The lack of knowledge allows them to hide the failure of intergovernmental Europe from sight, and to put the blame on an abstract ‘Brussels’ or ‘Europe.’”
In 't Veld has little hope that this handicapped conference will lead to any shift in the balance of power between EU institutions. It has been designed to preserve the status quo. The European Parliament must therefore use the full extent of the power it has under the current treaties, and it must secure a commission that is an ally. If that means a vote to remove Ursula von der Leyen from office, so be it. She said she hopes the departure of Chancellor Angela Merkel and her overcautious approach can change the dynamic, but in ‘t Veld is not betting on the German election resulting in significant change.
“We cannot just wait for Germany to show the way,” she said. “We need to stop talking about what member states have to do, let’s take our own responsibility. That’s why we were elected. Let’s not wait for the Conference on Future of Europe, or treaty change.”
“If we want a sovereign Europe, we will need to change the balance of powers.”
Dave Keating is an American journalist based in Brussels covering European politics for France24 and a Non-Resident Fellow at the Atlantic Council’s Europe Center.
