The so-called ‘isoglucose’ case was the subject of an important ruling by the European Court of Justice (ECJ) in 1980, which confirmed that the European Parliament played an indispensable part in the EC legislative process, even before the institution was granted any formal power to influence the contents of draft laws. The ruling (Roquette Frères v Council, Case 138/79) made it clear that, in areas where the Parliament was to be consulted by the Council of Ministers, the latter institution could not simply adopt the legal act in question in the absence of an opinion from the former.
In March 1979, the European Commission submitted a proposal for a regulation concerning the market in isoglucose, a form of sugar extracted from cereals and used as a sweetener. In seeking the opinion of the Parliament – as it was obliged to do under what is now known as the consultation procedure – the Council pointed out that, since the revised regulation had (for reasons of continuity) to come into force on 1 July of that year, the Parliament would need to give its opinion in April. In the event, it was not until May that the Parliament considered the report drawn up by its agriculture committee. The report was then rejected and referred back to the committee.
Because the first direct elections to the Parliament were held in June 1979, the latter body did not meet again in full session until 17 July, by which time the Council had adopted the revised regulation (on 25 June), without any opinion having been received. A private company affected by the production quota for isoglucose laid down by the Council brought an action in the ECJ against the Council to have the revised regulation declared void under Article 173 EEC (now 263 TFEU), on the grounds that an ‘essential procedural requirement’ had been infringed. In its judgment, the Court stated:
The consultation provided for … is the means which allows the Parliament to play an actual part in the legislative process of the Community. Such power represents an essential factor in the institutional balance intended by the Treaty. Although limited, it reflects at Community level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly. Due consultation of the Parliament in the cases provided for by the Treaty therefore constitutes an essential formality, disregard of which means that the measure concerned is void.
The isoglucose ruling, given so soon after the first European elections, was of lasting importance in terms of the Parliament’s credibility and self-confidence. It signalled clearly that the newly-elected institution could not be taken for granted in the legislative process, even where its formal powers were minimal. As the Court put it, the requirement of ‘due consultation’ of the Parliament could not be satisfied ‘by the Council’s simply asking for its opinion’.
At the time, there was speculation about whether the judgment might give the Parliament a de facto power of veto over any legislative proposal of which it disapproved – so that by failing to deliver an opinion on it, the measure in question could not be adopted by the Council. In 1981, the Parliament changed its rules of procedure to enable it to delay the final vote on a proposal in plenary until after the Commission had taken a view on its amendments, and to refer the question back to committee indefinitely if it received an unsatisfactory response. The purpose of this manoeuvre was to exploit the fact that, under the legislative procedure in question, the Council, assuming it wished to act, could only diverge from the text of the Commission proposal by unanimous agreement. So if the Commission changed its proposal to reflect the Parliament’s position, this greatly increased the prospect of the Parliament indirectly getting its way.
In practice, however, the outcome was less clear-cut. The Parliament’s leverage only seemed to be significant when the Council needed to act under time pressure, and even then limitations applied. When in 1993 the Parliament contested the adoption by the Council of a regulation on the Generalised System of Preferences (GSP) – which needed to be enacted by the end of the year when the existing trading rules would expire – the Court concluded that the Parliament had acted unreasonably in refusing to give its opinion on two occasions, not least for reasons that were not wholly related to the content of the proposal. The Parliament’s rights established in the isoglucose case were constrained by its obligation of ‘sincere cooperation’ in its dealings with the Council (European Parliament v Council, Case C-65/93). As a result, the Parliament became more careful – as Richard Corbett, Francis Jacobs and Michael Shackleton have put it – ‘to avoid explicitly blocking decisions by withholding its opinion indefinitely’, arguing instead for the need to extract more background information on a proposal, ‘to pursue discussions with other institutions or interested parties, to hold public hearings, or to wait for related events’ (The European Parliament, 2011).
In many policy areas, the simple consultation of the type undertaken in the isoglucose case was to be superseded by the cooperation, assent (now consent) and co-decision procedures, introduced by the 1986 Single European Act (SEA) and the 1992 Maastricht Treaty. Consent and co-decision give the Parliament a right of veto in the fields where they apply. However, until recently, consultation still applied to over half the legislation on which the Parliament voted, including agriculture (and thus regulations on products like isoglucose). The Lisbon Treaty, which came into effect in December 2009, finally shifted the balance decisively in favour of co-decision.
September 2012
Copyright: Anthony Teasdale, 2012
Citation: The Penguin Companion to European Union (2012), additional website entry