The Environmental Impacts of the Co-Decision Procedure in the European Parliament

The Maastricht Treaty of 1992 and The Amsterdam Treaty of 1999 were both unarguably

landmark pieces of institutional restructuring that, among other things, altered the European

Union’s (EU) Ordinary Legislative Procedure (OLP) by introducing the co-decision procedure.

This paper will attempt to present the contemporary, scholarly debate on whether or not this co-

decision procedure is beneficial or not using environmental impact as the judging criteria. It is

important to note, however, that many of the scholars wrote broadly about the institutional

restructuring of co-decision procedure without a direct application to its impact on the

environmental. I hope to bridge this gap. I will start with an analysis on what the co-decision

procedure entails and then outline three contemporary academic debates on this topic with

applications to environmental impact made throughout.

The Maastricht Treaty implemented the first version of the co-decision procedure which

replaced the co-operation procedure previously dictating EU policy making. The co-decision

procedure was then slightly updated and finalized in 1999 through the Amsterdam Treaty. In this

paper, I will refer to the co-decision procedure in its fully updated version (post-1999

Amsterdam Treaty). The co-decision procedure affords the Parliament veto power over bills after

last readings and conciliation committees—stipulated in Article 189B—as well as other co-

legislation powers prior to the signing and passing of legislation. These additional legislative

powers are participation in a conciliation committee if the ‘common position’ is rejected and a

third reading in which the parliament can suggest amendments to the council’s proposals.

Though the co-decision procedure impacts the relationship between the Parliament and the

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Commission, this paper will focus specifically on co-legislation between the Parliament and the

Council.

The current literature on the co-decision procedure most certainly cannot be broken up

into groups of scholars that merely support or reject the procedure. Because of the complexity of

European Union legislation, the co-decision’s impacts are highly nuanced. Thus, this paper is

best organized if it analyzes the most dominant debates in the current academic literature and the

different arguments scholars are making. The following are the most dominant debates in regards

to the co-decision procedure: 1. Whether or not the Parliament’s increased legislative powers

have made it more equal to the Council, 2. Whether or not the legislation following Amsterdam

is better and 3. Whether or not the co-decision procedure has decreased the EU’s transparency.

It is generally accepted that before the institutional restructuring of Maastricht and

Amsterdam, the Council was the most dominant institution within the European Union. Up for

contemporary debate, however, is whether the power gap between the Council and Parliament

was successfully bridged. Many scholars arguing that the gap has indeed been bridged refer to

Article 189b which grants the Parliament veto power over legislation introduced, amended, and

submitted for ratification by the European Union. Simon Hix and Bjørn Høyland discuss Article

189b extensively in their essay, “Empowerment of the European Parliament” writing that, “…

rather than the Council being able to make a unilateral “take-it-or-leave-it” proposal to the

Parliament, the Parliament has a de facto power of mutual veto under the main legislative

procedure in the EU”1. In other words, not only does the Parliament have veto power de jur—an

example being the Parliament’s veto of the Council’s Draft Directive on vocal-telephony in

1 Hix, Simon and Høyland, Bjørn (2013) ‘Empowerment of the European Parliament’, Annual Review of Political Science Vol. 16, 2013 Page 173.

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19942—but since then, the Parliament has set a robust precedent in regards to policy making; just

the threat of a veto is a very powerful new tool available to the Parliament. Hix and Høyland

assert that the option of veto or threat of veto suffices in concluding that the Parliament has

grown in power enough to bridge the gap between the two institutions.

Philippa Sherrington, following the headwind of Fiona Hayes-Renshaw and Helen

Wallace (who wrote a book analyzing the Council of Ministers)3, also comments on Article 189b

in her essay, “Visibles and Divisibles: Institutionalism and the Council of Ministers Ten Years

On”. She writes that post-1994, “…the Council was beginning to take the EP more seriously” 4

because, “more importantly, the new procedure [means] that the Council [cannot] reintroduce its

position if conciliation fails…overall, the data speaks of relative success, and counters claims

that the co-decision procedure would result in a declining efficacy of EU legislative decision

making”5. Sherrington strengthens the claims of Hix and Høyland that simply the threat of the

veto empowers the Parliament. With the threat, the Parliament gained credibility and legitimacy

and were therefore ‘taken more serious’. This line of syllogism sees through the eyes of the

Council such that making unitary decisions on legislation without considering the Parliament is

extremely risky. Thus, the Parliament, according to Hix, Høyland, and Sherrington is not just a

small hoop to jump through in getting policy signed; the Parliament is a powerful end-game co-

legislator.

The same scholars arguing that the gap between the Parliament and the Council has been

bridged continue with a different line of syllogism. Francisco Torres in his essay, “How Efficient

2 Garcia, Ricardo, "Community and National Legal Orders." 1996 European Community Law. Comp. The Hague: Nijhoff, 1999. Page 76.3 Hayes-Renshaw, Fiona, and Helen Wallace. “The Council of Ministers”. New York: St. Martin's, 1997. Print.4 Sherrington, Philippa (2003) "Visibles and divisibles: Institutionalism and the Council of Ministers Ten Years On". In: UNSPECIFIED, Nashville, TN. Page 6.5 IBID. Page 4.

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is Joint-Decision Making in the EU” writes that, “…EU governance seems not to be hindering

European democracy but rather extending it, bringing in some new important features, such as

new forms of participation, through the interaction of different institutions and citizens in a

multi-level political negotiation”6. More specifically, Torres is referring to the Parliament’s

participation in conciliation committees in which a common position must be adopted. Simply

the Parliament’s presence in conciliation committees as an example of a ‘new form of

participation’ is a reason in itself to argue that there is more equality between the two chambers

because now there is more face time given to the Parliament on average. However, the

Parliament does not just sit idly by; it is now 50% of the resulting opinion through the common

position. Through whatever means of negotiation, simply because the Parliament is now required

to take greater part and concretely author a common position means that, “co-decision has

become a self-fulfilling means to greater inter-institutional cooperation and dialogue, and more

broadly the further legitimization of EU governance”7. Thus, through Hix, Høyland, Sherrington,

and Torres we see arguments in favor of the co-decision procedure based purely on egalitarian

grounds.

However, given that this is an ongoing debate, there is heavy disagreement from scholars

arguing that Maastricht and Amsterdam did not make the EU more egalitarian. Geoffrey Garrett

and George Tsebelis, two of the most published authors in this field, write in their essay, “More

on the Co-Decision Endgame” that, “…there is no point in discussing the other amendments and

if Parliament is so foolhardy as to persevere with them, it will be up to Parliament to carry the

responsibility for the failure of the procedure and ultimately to rejected the act outright”8. This,

6 Torres, Francisco. "How Efficient Is Joint Decision-making in the EU?" Intereconomics 38.6 (2003). Page 318.7 Sherrington, Philippa (2003) "Visibles and divisibles: Institutionalism and the Council of Ministers Ten Years On". In: UNSPECIFIED, Nashville, TN. Page 13.8 Garrett, Geoffrey and Tsebelis, George (1997) ‘More on the co-decision endgame’, The Journal of Legislative Studies, 3: 4, Page 142.

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in reference to the veto power granted by Article 189b, goes directly against what Hix and

Hoyland asserted previously when discussing the merits of the veto. Garrett and Tsebelis, though

recognizing that veto power is power indeed, it may be too shallow to consider it as such at face

value. In other words, the Parliament needs to play its cards well when considering vetoing an

entire legislative package. They argue that in most cases the Parliament will opt against a veto

because it would reflect poorly on them as a legislative body; the Parliament doesn’t want to

look it was responsible for killing the bill.

This opinion is advanced in a second essay of theirs published thirteen years later

entitled, “Agenda Setting, Vetoes and the European Union's Co-decision Procedure.” The pair

argue that, “this veto power is worth little so long as the Council is located between the

Parliament and the status quo. As a result, winning Council proposals under co-decision are

likely frequently to be less integrationist than winning Commission/EP proposals under co-

operation”9.The very power that was supposed to give the Parliament an advantage in the

legislative field, according to Garrett and Tsebelis, realistically cornered the Parliament into

submission; making the ‘take-it-or-leave-it’ maxim still highly applicable.

Moreover, in response to scholars such as Torres, Garrett and Tsebelis argue in their

more recent essay that simply forcing the Parliament to take part in conciliation committee does

by itself increase integration and cooperation. They write that, “on institutional questions, in

contrast, the members of the Council are likely to have identical positions—because they all

want to increase the power of the Council over other institutions. Where this is the case, the

conditional agenda-setting power of the Parliament under co-operation would be eliminated

because its amendments could be overruled by the unanimous Council”10. In such a

9 Tsebelis, George and Garrett, Geoffrey (1997) ‘Agenda setting, vetoes and the European union’s co-decision procedure’, The Journal of Legislative Studies, 3: 3. Page 80.10 IBID. Page 85.

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circumstance, the conciliation committee would not be a source of power for the Parliamentary

because it can be trumped by a unanimous vote within the Council. With nothing left except the

veto, Garrett and Tsebelis’ argument still stands because they argued earlier that the Parliament’s

new veto power is really no veto power after all.

However, the aforementioned debate, though rich in its applications to republicanism or

institutional power sharing, has very little importance when seen through the judging criteria of

environmental impact. The equality of powers between the varying institutions links to impacts

in government sustainability or public opinion or checks and balances. There is no doubt that

power sharing is important in analyzing the political spats between the different institutions, but

the pure value of egalitarianism is irrelevant when seen through the judging criteria of

environmental impact.

The second dominant debate currently trending in this particular scholarly community is

about whether the legislation generated since co-decision procedure has been better (either

quantitatively and/or qualitatively). Many scholars argue that the legislation is better because

through the newly institutionalized co-decision procedure, legislation has been generated more

efficiently than before. Michael Shackleton, in his essay, “The Politics of Codecision” writes

that, “under the co-operation procedure in the five years preceding the entry into force of the

Maastricht Treaty, 24 per cent of the EP's second reading amendments were adopted by the

Council (Corbett et al., 1995, p.199)”11. This 24% is in contrast to a 27% adoption rate under the

newly institutionalized co-decision procedure EVIDENCE FOR THIS. Shackleton utilizes a

research methodology that analyzes the entire track of bills from their first reading to the final

11 Shackleton, Michael (2000) “The Politics of Codecision”, Journal of Common Market Studies. Vol. 38. No. 2. Page 328.

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signing to see quantitatively, how much more legislation is produced. Thus, through empirical

data, Shackleton argues that co-decision has made it easier to pass legislation by a 3% margin.

A large driver of more efficient legislation has been the practice of trialogues—informal

discussions attended, “by the rapporteur, the competent committee chair, the delegation chairs

from the Council and the European Parliament, and a representative of the Commission

(Schackleton, 2000)12. In short, trialogues are just a form of negotiation that includes

representation from all three institutions (hence, ‘tri’) but less attendance than a full blown

conciliation meeting. Shackleton comments directly on trialogues writing, “this institutional

innovation has been of great importance in helping to reduce uncertainty and to channel

conflict…by the end of the Maastricht era they had become so self-evident that no one contested

them and all agreed that such meetings were an essential means of reaching a successful

conclusion in conciliation”13. A channeling of conflict and decrease in uncertainty is, as

Shackleton argues, a great benefit of the co-decision procedure with an extended impact of less

gridlock and more efficient legislation production. Gridlock in government is a very real and

dangerous problem. Intense gridlock between members of the Democratic and Republican

parties of Congress in the U.S. based on fundamental, ideological differences contingent on a

new budget bill led to a government shut down in 2013. Though the EU will not shut down if it

doesn’t pass an environmentally conscious bill, the aforementioned example is meant to

highlight the fact that gridlock is many times rooted in ideologically differences which can be

very difficult to mede out. If the potential for less gridlock can be achieved, as seems to be the

case since the new co-decision procedure, efficiency may be a larger benefit than is usually

12 Burns, Charlotte. "Chapter 8: The European Parliament." Environmental Policy in the EU: Actors, Institutions and Processes. By Andrew Jordan and Camilla Adelle. London: Routledge, 2013. pp. 132-51. Print.13 Shackleton, Michael (2000) “The Politics of Codecision”, Journal of Common Market Studies. Vol. 38. No. 2. Page 334.

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assumed. Those in favor of a slower, less efficient legislating process argue that it produces more

quality legislation because it is scrutinized more closely.

Torres argues the opposite. He asserts that the co-decision procedure creates better

quality legislation when he writes, “a multi-level political negotiation process may render policy-

making more efficient by allowing for a continuous confrontation of positions at various levels

of government, making it possible and easier to converge to an acceptable common position” 14.

With constant confrontation, Torres argues, compromise ought to be achieved much more easily

and quality assured because radicalism can be diminished through a more centralized common

position. Torres continues by writing, “thanks to the co-decision procedure and to its discussion

in national parliaments, discussions and deliberations of the European Parliament as well as

European environmental directives are now followed up and in some cases strengthened before

being torpedoed by some derogation and/or by special conditions”15. Here Torres argues that

efficient legislation in regards to deradicalization is not just a benefit directly within the

European Union, but national parliaments as well. This compounds the benefits of the

efficient/deradicalized argument because it now is not just a benefit on the supranational level,

but also the intergovernmental level. The logic behind deradicalized legislation is quite simple.

Through ‘continuous confrontation,’ policies became more and more moderate as policy makers,

over time, bend more and more in order to pass legislation.

Charlotte Burns and Neil Carter, however, argue that this deradicalization does more

harm than good when using environmental impact as a judging criteria. Author of a prodigious

amount of literature surrounding this topic, Burns co-authored a paper with Neil Carter entitled,

“Is Co-decision Good for the Environment? An Analysis of the European Parliament’s Green

14 Torres, Francisco. "How Efficient Is Joint Decision-making in the EU?" Intereconomics 38.6 (2003). Page 318.15 IBID. Page 322.

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Credentials.” In the paper they write, “…this consensual approach to politics has a potentially

negative effect of de-radicalizing the content of the European Parliament’s amendments—a

process that is heightened if there are two layers of compromise through which amendments are

being filtered”16. In other words, a more moderate approach to legislation would normally be a

benefit because it paves the way for more consensus and less gridlock. However, if we are using

environmental impact as a judging criteria, moderate is just another word for weakness when it

comes to conserving and protecting the environment. Burns and Carter’s claims are strongly

backed by quantitative research, utilizing a similar model as Shackleton in that she analyzes the

amount of legislation passed at certain junctures in regards to the Maastricht and Amsterdam

restructuring.

Burns and Carter, however, takes the research a step further and looks specifically at the

‘greenness’ of passed legislation. Burns and Carter’s results lead us to believe that though more

legislation is passed, it is not necessarily more beneficial for the environment. She argues that the

Parliament has become less ambitious with its green efforts in order to avoid gridlock. Burns and

Carter write, “a clear majority of the pro-environment amendments were ‘marginal’, suggesting

that the EP was often only tweaking legislative proposals to make them slightly greener, while

only 2.9 per cent of the amendments were ‘strong EM’”17. What Burns and Carter are suggesting

is that even if the legislation passed was ‘green’, it was not a complete overhaul of previous laws

or legislation that could carry significant impact. They refers to this lack of significant impact as

‘tweaking’ which is hardly commendable especially since the Parliament was previously hailed

as the environmental champion of the EU. Burns and Carter conclude this line of syllogism by

writing that, “the two most common amendments adopted were ‘significant-marginal’ (39.6 per

16 Burns, Charlotte, and Neil Carter. "Is Co-decision Good for the Environment? An Analysis of the European Parliament's Green Credentials." Political Studies Association 58.1 (2010): Page 144.

17 IBID. Page 132.

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cent of the total) and ‘insignificant-neutral’ (18.2 per cent)—thus a clear majority of amendments

adopted had minimal legislative impact and little or no positive benefit for the environment”18.

The deradicalization of environmental policy is done so because the Parliament wants to be a

team player and avoid gridlock. This, however, means, “that outcomes will be subject to heavy

lowest common denominator pressures”19. In the current Parliament’s opinion, a bill that is

somewhat green is better than no bill at all and thus, the lowest common denominator (somewhat

green) is what the Parliament in many cases settles for since the co-decision procedure.

Third, and lastly, the co-decision procedure has been criticized by an amalgamation of

scholars for decreasing the overall transparency of the Ordinary Legislative Procedure (OLP).

Because the co-decision procedure added a third reading and a conciliation procedure to the OLP

—requiring the Parliament to co-legislate with the Council—it has significantly increased the

informal contacts between the two institutions. This makes sense given that the reality of

contemporary politics and legislation is that most votes and decisions are made behind the

scenes. However, the co-decision procedure had the effect of making frequent trialogues—

mentioned in the previous paragraph—the norm so that ‘fast track readings’20 could speed up the

OLP. However, the use of trialogues is where much of the scholarly debate on transparency

hinges because trialogues don’t require “proper mandate from either the committee or the

plenary”.21 Burns continues in her analysis of trialogues writing, “the shift towards backroom

deals potentially excludes actors from the decision-making process, which is problematic for the

European Parliament, which has tried to present itself as the most open and representative EU

18 IBID. Page 135.19 Tsebelis, George and Garrett, Geoffrey (1997) ‘Agenda setting, vetoes and the European union’s co-decision procedure’, The Journal of Legislative Studies, 3: 3. Page 84.20 Burns, Charlotte. "Chapter 8: The European Parliament." Environmental Policy in the EU: Actors, Institutions and Processes. By Andrew Jordan and Camilla Adelle. London: Routledge, 2013. Page 142.21 IBID. Page 141.

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institution”.22 Anytime certain actors are missing from negotiation or legislation, a white flag is

raised: why were they excluded? Frankly speaking, it is most likely because something would

have been raised that would make the legislation safer or better quality, but would take much

more time to pass.

Though the OLP benefits from trialogues in that they are easier to arrange (because they

require no mandate) and manage (because there are less people present), two layers of approval

and contribution are missing, making trialogues much less democratic. This, Burns, argues, is

where the two institutions lose transparency. Sherrington concurs with Burns adding more detail

when writing, “the public will only be able to watch the initial stages—the Commission’s

presentation of the proposal, and the final voting and explanation of voting”23.Because trialogues

and informal meetings are not webcasted or televised, they are hidden to the public when

compared to formal congressional legislating in the United States, for example, which is subject

to the scrutiny of CSPAN 24/7.

Moreover, with an increase in backroom deals and informal meetings comes—as would be

expected—heightened influence of lobbyist. In her article, Burns writes, “as the EP’s powers

have increased it has attracted more attention from industrial as well as a wide range of NGO

lobbyists”24. This only makes sense given that the OLP was purposefully altered to make the

Parliament an equal or near-equal co-legislator. NGOs and Euro interest groups now have a

second court to play in if they are not successful in persuading the Council to vote on their

behalf. NGO and interest group lobbying, however, undermine the transparency of the

Parliament and the OLP. Greenpeace writes broadly of this increased lobbying in the European

22 IBID. Page 144.23 Sherrington, Philippa (2003) "Visibles and divisibles: Institutionalism and the Council of Ministers Ten Years On". In: UNSPECIFIED, Nashville, TN. Page 12.24 Burns, Charlotte, and Neil Carter. "Is Co-decision Good for the Environment? An Analysis of the European Parliament's Green Credentials." Political Studies Association 58.1 (2010): Page 137.

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Parliament saying, “the enormous influence of corporate lobbyists undermines democracy and all

too frequently results in postponing, weakening or blocking urgently needed progress in EU

social, environmental and consumer protections”25. The undermining of democracy is where the

Parliament potentially loses transparency where it should never lose any since it is the only

directly elected institution of the three.

Yet again, however, when applying the decreased transparency argument to the judging

criteria of environmental impact, it looks much less important (as was the case with the equality

arguments in the first debate). Even if the Parliament and the entire EU have less transparency as

a result of the co-decision procedure (which seems to be the case), it doesn’t necessarily link to

any clear benefits or detriments to the environment. A person’s trust and faith in the EU does not

affect the actual legislation on an inter-institutional level. And since the judging criteria only

takes into account direct impacts on environmental conservation and sustainability laws, not

auxiliary detriments of lost trust or less democracy, the third debate is on par with the first—

significantly less important than the second debate.

With the implementation of the co-decision procedure through Maastricht and

Amsterdam, the equality of the Parliament and Council, the efficiency of legislation, and the

transparency of both bodies has been impacted. In regards to environmental impacts, however,

the efficiency of legislation seems to have had the largest impact with the equality and

transparency having only marginal impacts, if any. The debate on the merits of the co-decision is

still fluid and can therefore not be conclusively summarized as ‘good’ or ‘bad’, though the

evidence—especially on Burns’s behalf—seems to weigh more in the opposition’s favor.

25 GreenPeace. "General EU Issues: Access Without Accountability." N.p., n.d. Web. 07 Mar. 2015.

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