2020. 04. 06.
Analysis by MEP József Szájer
With regard to the coronavirus pandemic, an unprecedented situation has arisen in the functioning of the EU institutions. We are facing particular circumstances for which there is no specific legal framework or extraordinary legal order in place thus it is unclear and ambiguous in what context the general principle of force majeure should apply to our operability.
At this critical juncture, EU institutions are particularly exposed to ideological and political attacks. Therefore, we are rightly concerned about our functioning: we should not condone these attacks by not acting in a predictable way or in compliance with the law.
Rule of law is indispensable for legitimacy. The European Union itself is founded on the rule of law, meaning also that every action taken by the EU institutions must be in accordance with the Treaties that have been approved voluntarily and democratically by all the Member States. According to the Treaties, the institutions shall aim to “promote the values of the EU, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions.”
As an essential element of the rule of law, legal certainty is prerequisite for confidence. The principles of stability and consistency, foreseeability of the laws and legitimate expectations are part of the general principle of legal certainty in European Union law.
Consequently the European Parliament, which stands always at the forefront of enforcing the rule of law in the Member States, must also set an example by functioning in compliance of that principle.
Nevertheless the applicability of force majeure is an extremely uncertain area. It is an exceptionally applicable principle of law, which cannot be interpreted extensively but proportionally and purposefully and in the absence of a written provision to that effect; no direct obligation can be derived of it.
While force majeure may relieve us of obligations that cannot be complied with for compelling external reasons, it does not relieve us of the need to establish a framework for the legality of our operations, to ensure predictability, legal certainty and the rule of law. Given that no similar case has ever occurred in the history of integration, there is no particular legal basis, which would exempt the institutions from the obligation to comply with the EU norms and standards in force.
Consequently primary and secondary EU legislation currently in force are, even in the present situation, overall applicable.
In view of the critical nature of the situation, there have been a number of cases in recent weeks – expected to eventualise in the future – in which institutions have had to make themselves operational, able and capable for decision-making.
For the EU institutions other than the European Parliament, the absence of an extraordinary legal order it is unsubstantially relevant. Conducting remote meetings is a common practice for the European Council, based on pre-established rules. In the case of the Commission decision-making is personalised, for corporate decisions rules are in force for written procedures or other processes not requiring physical participation and presence. Even in these cases, compliance with the legislation might be challenging.
In the case of the European Parliament however physical presence is an immanent, essential condition, core concept of the entire functioning, since all the provisions of the Rules of Procedure are based on the condition of Members‘ physical presence. Presence is a legal fact and it has numerous legal effects in the Rules of Procedure, in many cases related to the validity of acts. Disregard of these rules as they stand now and procedural errors deriving thereof leads to unlawful decisions, which can subsequently be exploited in the future, and a serious breach of an EU institution against the rule of law.
This summary seeks therefore to outline the elements in the functioning of the European Parliament that could be questioned since the outbreak of the epidemic so far.
Elements that are legally questionable are therefore summarised as it follows:
- Specific breaches related to remote plenary session and temporary emergency procedure introduced in the European Parliament
First of all, I would like to emphasize that the following reasoning is not intended to revive the old and toxic debate on the Strasbourg session, but the related European Court of Justice decisions discuss and interpret the legal principles applicable in the present case, the scope of my interest is limited therefore to the general principles and does not include the locality of the issue: „Whilst the Parliament is authorized, under the power of internal organisation, to take appropriate measures to ensure the proper functioning and conduct of its proceedings, its decisions in that regard must respect the competence of the Governments of the Member States”
- It is Parliament’s right to ensure its functioning, but solely under a strict normative framework. According to Rule 155 of the Rules of Procedure “Parliament shall hold its sittings and its committee meetings in accordance with the provisions of the Treaties.” Article 232 TFEU allows Parliament to adopt its own rules of procedure, under which it may determine the length of plenary sessions, in accordance with the Treaties and the case law of the European Court of Justice, meaning therefore a very strict limit to the powers of the European Parliament.
- On 12 December 1992, the Governments of the Member States adopted the Edinburgh decision taken by common agreement on the location of the seats of the institutions and of certain bodies and departments. Accordingly, the sole article of the TEU No 6 Protocol, which incorporated the above decision, provides for the seat of the institutions pursuant to Article 341 of the Treaty on the Functioning of the European Union: “The European Parliament shall have its seat in Strasbourg where the 12 periods of monthly plenary sessions, including the budget session, shall be held. The periods of additional plenary sessions shall be held in Brussels. The committees of the European Parliament shall meet in Brussels. “
- Several decisions of the European Court of Justice have analysed and interpreted these provisions. All in all, the ECJ is on the opinion that the everyday functioning of Parliament should not be hindered by the above power of Member States, however decisions have further stated that any modification of the seat or working locations would require a Treaty change and, thus, the consent of the Member States as per authorization:
- In 1997 the ECJ ruled that the right of Member States to determine the seat implies that they can also fix the number of plenary sessions to be held in Strasbourg. „Given the plurality of working places, the exercise of that competence involved not only the obligation to determine the location of the seat of the Parliament but also the implied power to give precision to that term by indicating the activities which must take place there.“(…)“The intention of the Governments of the Member States was therefore to provide that the seat of the Parliament, in Strasbourg, be the principal place where it meets in ordinary plenary sitting, and to that end to specify the mandatory number of part-sessions which must be held there.“ According to the ECJ the Edinburgh Decision must thus be interpreted as defining the seat of the Parliament as the place where 12 ordinary plenary part-sessions must take place on a regular basis, including those during which the Parliament is to exercise the budgetary powers conferred upon it by the Treaty. Additional plenary part-sessions cannot therefore be scheduled for any other place of work unless the Parliament holds the 12 ordinary plenary part-sessions in Strasbourg, where it has its seat.
- In addition, in its 2011 decision the Court held that „whilst the Parliament is authorised, under that power of internal organisation, to take appropriate measures to ensure the proper functioning and conduct of its proceedings, its decisions in that regard must respect the competence of the Member States to determine the place for Parliament’s ordinary plenary sitting.“ In that regard, the Court has held that „the intention of the Member States was to make provision for the seat of the Parliament, in Strasbourg, to be the principal place where it meets in ordinary plenary sitting, and to that end to specify the mandatory number of part-sessions which must be held there, and for the Parliament to exercise its budgetary powers in plenary sitting during one of the ordinary plenary part-sessions held at the seat of the institution“.
- Looking at the ECJ case law, we can see with concern that on the basis of the above arguments, lawsuits could be launched that would turn the functioning of the entire Union on its head. In 2018 the French Republic submitted that the Parliament infringed Article 314 TFEU by including the debate and vote on the joint text on the annual budget of the EU for the financial year 2017 on the agenda for its additional plenary part-session in Brussels. In this case the French Republic seeked the annulment of four acts of the European Parliament relating to the adoption of the annual budget of the European Union for the financial year 2017, alleging that the contested acts infringe the Protocol concerning the seats of the institutions. However in this case the French Republic’s single plea in law has been rejected on the basis of different reasons, all the arguments introduced by the former case law, have been endorsed. The fact that such a lawsuit has taken place has led to considerable legal uncertainty related to the EU budget. On this basis, it is conceivable how a similar legal action would be taken in this critical situation.
What needs to be emphasized with regard to the above decisions is, first and foremost, that whatever we interpret the current remote plenary sessions – part-sessions in Brussels or part-sessions at other places of work – any derogations from the specific arrangements of the plenary sessions may not be made otherwise than under the authority of the Member States.
This option should be considered in order to restore the legitimate functioning of the European Parliament.
- Violations of the provisions of the Rules of Procedure
Generally speaking, the physical presence of Members seems to be prerequisite for the functioning of Parliament, and this is no different for national parliaments:
- In the German Bundestag although the results of votes are routinely recorded and verified electronically, the procedure is not designed to allow MPs to vote remotely. Therefore a new paragraph 126a) has been added to the Geschäftsordnung Article 45 of which originally required the presence of half the members in order to take legally binding decisions. According to the amendment the threshold has been lowered to a quarter of all members.
- On 14 March, the Romanian Parliament adopted a decision amending its internal rules to allow parliamentary work to be conducted ‘via electronic means’ in exceptional circumstances (such as epidemics, natural disasters, earthquakes or terrorist events) that prevent MPs from being physically present in parliament.
- In France, the rules of procedure of both chambers, the National Assembly and the Senate, require the physical presence of members in order to vote, and there are no provisions for remote voting. Both chambers allow their members to vote by proxy in specific circumstances (including force majeure). At the National Assembly, an MP may only grant a proxy vote to another MP in ‘normal times’. However, in order to adapt to the COVID-19 crisis, the National Assembly has agreed on a modification to the rules of procedure in order to introduce specific working methods.
Similar to the above cases, no legitimate solution to the situation can be found in the European Parliament without the modification of the Rules of Procedure.
In the case of the points highlighted below, the provisions of the Rules of Procedure are incomprehensible and unenforceable in the absence of a physical presence.
- Quorum and thresholds
- A quorum shall exist when one third of the component Members of Parliament are present in the Chamber, in accordance with Rule 178. To that end, Rules of Procedure has a substantial validity effect.
- There are similar problems with the application of the threshold in determining it, especially for medium and high thresholds, which presuppose a physical presence.
- Attendance of Members at sittings
- According to Rule 156 the names of the Members recorded as being present in the attendance register shall be indicated in the minutes of each sitting as “present“. The names of the Members excused by the President shall be indicated in the minutes of each sitting as “excused”.
- In view of this, there is a complete uncertainty as to who was considered to be present, absent and excused in the 26th March plenary. According to the minutes of the 26 March plenary session, 75 Members appeared in plenary and 3 Members excused their absence, creating the absurd situation that more than 600 absent Members voted during the three votes.
- Rule 187 regulates on voting, according to which Parliament generally votes by show of hands, however, the President may at any time decide that the vote shall be held by means of the electronic voting system, as it happened in our case. Voting shall be opened and closed by the President. After the vote has been opened by the President, however, no one other than the President may speak until the vote has been declared closed. During the 26th March plenary session, the vote on the application of the emergency procedure was open from 10:00 to 11:00 in the morning, while the speech by the President of the Commission, Ursula von der Leyen, had already started at 10:30 during the vote, so between the opening and closing time.
- It also raises questions as to whether the voting technique used is in line with the voting provisions of the Members’ Statute according to which Members shall vote on an individual and personal basis. Agreements concerning the way in which the mandate is to be exercised shall be null and void.
- Right to speak, one minute speeches
- Many of the provisions of the Rules of Procedure concerning speaking time (Rule 171) are difficult to reconcile with the remote operation of the plenary session, particularly in the form in which this was done in the present case. Those Members following online the session was not given any interactive opportunity to speak, only the Members physically present in the Chamber could take the floor during the debate.
- In addition, provisions of the Rules of Procedure as they stand now, such as the blue card system, one minute speeches (Rule 172) or other additional provisions – for instance: Members shall speak from their places and shall address the President – are practically incompatible with a distance participation.
Out of the foregoing, whatever remote functioning would be introduced, Parliament will be able to operate lawfully only if appropriate modifications to its Rules of Procedure would be introduced – underlining again our above position that primarily the authorization of Member States is needed for the organisation of plenary sessions. The system introduced so far does not guarantee the lawful operation.
Asimple Bureau decisions on different interpretations of physical presence are inadequate, since they cannot, according to the principle of the hierarchy of laws, lay down provisions, which are contrary to a higher norm, such as the Rules of Procedure and the Treaties. According to Rule 25 (4) the Bureau shall take financial, organisational and administrative decisions on matters concerning the internal organisation of Parliament, its Secretariat and its bodies and shall take decisions on matters relating to the conduct of sittings – however all these duties may be performed only in accordance with the Treaties and the Rules of Procedure.
Furthermore there were also many uncertainties regarding the convening of this sitting. According to the Rules of Procedure agreement with the Conference of Presidents, the President may convene Parliament in urgent cases. However, the consent of the Conference of Presidents is required. No decision confirming such consent was communicated to the Members, only a summary was sent. It has not been confirmed whether a formal decision has been taken, was there a vote, who were present and whether the CoP decided by consensus (Rule 26).
3. How the above irregularities can be remedied and how the proper functioning of the Parliament can be ensured.
Given that the approval of the functioning of the Parliament under these particular circumstances is left to the competence of the Member States under the Treaties and interpretative decisions, the Parliament must obtain the approval of the Member States concerning deviation from the plenary agenda at a level, which does not ensure that Strasbourg meetings take place, such as the remote sessions.
When the remote plenary session took place for the first time (26th March) Parliament should have voted first on an amendment to the Rules of Procedure, thus providing the only way to introduce the extraordinary rules on remote functioning. The fact that European Parliament voted on the urgency procedure (Rule 163) does not serve as authorization to introduce functions that would have been possible only by amending the Rules of Procedure.
In order to avoid perpetuating a situation of legal uncertainty, it may be necessary to retrospectively approve by a single act those decisions taken in the context of an unlawful procedure.
Elseways the European Parliament might even face the annulment of the adopted acts to be seeked on the basis of Art 263 TFEU, according to which the Court shall review the legality of legislative acts, acts of the European Parliament intended to produce legal effects vis-à-vis third parties, and on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.
It is in our common interest that all the institutions, even more under these circumstances, operate to the greatest extent possible but only if it happens in compliance with all legal requirements in force. Nevertheless it should be borne in mind that any action of the European Parliament in this situation sets a precedent for the interpretation of the Rules of Procedure. Any extension of power questionable under the Treaties or the secondary EU legislation can lead to interpretation perplexity, might cause application inconsistencies and could have undesired long-term consequences in field of interinstitutional and multilateral relations.
Parliament plays a distinct and unique role as the only institution that is
directly elected by and accountable to the European citizens. The EU is a
representative democracy, with Parliament as the direct representative of the
European citizens at Union level, which places a
special responsibility on us. In the light of the above-mentioned failures, it would be of
paramount importance – and I appeal for your support thereto – keeping the procedure of
the European Parliament predictable
adherent to the rules, in order to ensure legal certainty for the citizens in
these strenuous times and to uphold the rule of law.
 Art 2 TEU
 Art 13 TEU, furthermore: “Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.”
 ECtHR The Sunday Times v. the United Kingdom (No. 1), 6538/74, 26 April 1979
 ECJ, 120/86, Mulder v. Minister van Landbouw en Visserij,
 Rule of law checklist of the Council of Europe
 C-345/95 French Republic v European Parliament, paragraph 31
 on the basis of Articles 216 EEC, 77 ECSC and 189 EAEC
 C-345/95 French Republic v European Parliament
 Joined Cases C-237/11 and C-238/11 French Republic v European Parliament
 C-73/17 French Republic v European Parliament
 2005/684/EC, Euratom
 As explained in point 1, it may also be the case that the remote plenary session should, in principle, be held in Strasbourg in order to comply fully with the Treaties.
 Articles 10 and 14 TEU