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22nd May 2022

Member states threaten MEPs and commission with legal case

  • A meeting room at the EU Council building in Brussels (Photo: consilium.europa.au)

Member states on Thursday threatened to take the European Parliament and Commission to court over what it calls the "illegal" provisions of an inter-institutional agreement which gives MEPs extra powers on international negotiations and greater access to classified EU documents.

Carved out following the entry into force of the Lisbon Treaty, the new inter-institutional deal was adopted by the EU legislature on Wednesday (20 October) and signed by both parliament chief Jerzy Buzek and commission president Jose Manuel Barroso.

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The Council of ministers, the main decision-making body of the EU, did not participate in negotiations on the agreement. Its legal services have issued a negative opinion on the document, which was taken up by employment ministers meeting in Luxembourg on Thursday.

"The Council notes that several provisions of the framework agreement have the effect of modifying the institutional balance set, according the European Parliament prerogatives that are not provided for in the treaties and limiting the autonomy of the commission and its president," the ministers say in their written conclusions.

The reservations concern particularly MEPs' participation in international talks and their increased access to classified documents and to information related to legal cases pursued by the commission against member states.

"The Council will submit to the Court of Justice any act or action of the parliament or of the commission performed in application of the provisions of the framework agreement that would have an effect contrary to the interests of the council and the prerogatives conferred upon it by the treaties," the document reads.

In its legal opinion, the Council also blasts the "special partnership" between the EU legislature and the commission, as enshrined in the inter-institutional agreement. "Privileged relations" between the two EU bodies with the exclusion of the Council would be in breach of the Lisbon Treaty, according to the lawyers working for the member states.

To legal experts working outside institutions, this inter-institutional quarrel is "natural" following the coming into force of the Lisbon Treaty which grants the EU parliament increased powers to the detriment of member states.

"The Council's objections can seem legitimate from their point of view. However, the inter-institutional agreement as such doesn't necessarily break the Lisbon Treaty," Piotr Kaczynski from the Centre for European Policy Studies, a Brussels-based think tank, told this website.

He pointed to the fact that Council excluded itself from negotiations with the other two EU institutions and that it cannot claim that they cannot have "special relationships" among themselves.

As any other legal document, the Lisbon Treaty leaves room for interpretation and each institution tries to make out the best for its own interests, Mr Kaczynski said.

Rules on access to information "still leave room for maneuver" and the security clearance given to MEPs by the commission will of course be its own responsibility, he added.

A legal case is "always an option", Mr Kaczynski added, in case the council does not find the application of the agreement satisfactory.

"The European Parliament is claiming powers and the Council wants to preserve the status quo as much as possible. The commission has given up a lot of points to the parliament, their relations are fine. But relations between parliament and Council are not settled yet."

From the commission's side, a spokesman said the fact that the negotiations on this agreement were transparent "with regular information on the state of play of negotiations being conveyed to the council on a number of occasions."

"The agreement updates the relations between the two institutions to the new treaty framework, whilst staying clearly within the limits set out in the treaty in terms of the competences and respective roles of each institution. The commission is therefore confident that its implementation will not lead to any legal difficulty," Michael Mann, spokesman for institutional affairs told EUobserver.

Portuguese centre-right MEP Paulo Rangel, in charge of drafting the parliament's position on the agreement last week said he was confident the legal threat would not materialise.

"Every institution interprets in its own way their new powers given by the Lisbon Treaty and tries to maximise their positions. I don't think this means there is a conflict within the institutions," he said.

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