How the EU works (and doesn't)

The way EU laws are made is actually fairly simple, but it's in many peoples' vested interest to make it seem impossibly complicated.

It’s that time again. As the EU election on 9 June approaches, European media will begrudgingly trot out their ‘how the EU works’ pieces. The aim is to establish a context they should be providing all the time, but instead only try once every five years. These types of pieces, even if well-intentioned, invariably start off with the same premise: the EU is hopelessly complex and confusing, but it’s important so you need to try to understand it. In other words, eat your vegetables even though they taste bad. The problem is that presenting it as a byzantine and illogical mess will immediately turn readers and viewers off. And there is no need to present it that way because, in fact, it’s not all that complicated.

Tome Reid of the Washington Post wrote in 2004 that "nobody would have deliberately designed a government as complex and as redundant as the EU.” But the reality is that this can be said of most government structures, and in particular of the archaic and dysfunctional government of the United States. While there are certainly elements of EU law-making that are unnecessarily complex or cumbersome, the basics of how EU laws are made are actually fairly easy to explain - particularly by relating it to the American and German political systems. Really, the only thing people need to know is that there are three legislative bodies and one judicial overseer. There is the executive branch - the European Commission, which one could say is equivalent to the White House (along with the giant civil service within the agencies which the White House oversees). Then there is a two-house bicameral legislature. The lower house, the directly-elected European Parliament, is less powerful than the upper house, the EU Council. And then there is the EU’s supreme court, the European Court of Justice, which makes sure the member states follow the laws passed by the EU legislature and that the EU legislature itself is acting within the law.

Like in the US Congress, the upper house (Senate) is the more powerful and the one that is meant to be more practical, where cooler heads prevail. And like in the German parliament, the lower house (Bundestag) is directly elected while the upper house (Bundesrat) is made up of representatives of each state government. Like in Germany, the political makeup of the lower house is determined by direct elections every five years, while the makeup of the upper house is determined by the elections of member states which happen at various times. This is, in fact, how the US Senate used to work before US states started changing their voting laws 100 years ago to make senators directly elected. Until the 20th century US senators used to be chosen by the governments in the state capitals, just like they are in Germany and the EU today.

Now, there is one significant difference with this analogy. Unlike in a typical national government, in the EU laws are proposed by the executive branch rather than by the legislature. In presidential systems like France and America, and in parliamentary systems like the UK and Germany, it is the legislature that proposes laws and the executive can sign them or veto them. After the Commission proposes a law it is analysed by the Parliament and Council. Each come up with their own amended version of the law, and those versions have to be reconciled into a single text (just like what happens between the House and Senate in the US Congress). The Commission executive then decides whether to accept or veto that final text. Essentially it’s the same process except that the law’s origin comes from the executive rather than the legislature. But no law can pass without the approval of the legislature.

As in any other federal system like Germany’s or America’s, in the EU some areas of law are covered by the federal level and some are a competence of states. Unlike in those national federal systems however, the line between federal and member state law in the EU can be a bit blurred because of directives - a peculiarity of EU law. There are two types of EU legislation: regulations that are directly applicable on people and companies, and directives where deliverables and goals are spelled out and member states can choose how to meet them. This is why, during the Brexit referendum for instance, people were making wildly different claims about what percentage of British laws are made at federal level in Brussels - it depends how you count directives. Generally speaking, the figure we often hear is that if we count directives, about 60% of the laws that effect an EU citizen comes from the federal level - a proportion similar to the federal-state split in the US.

Another thing that causes confusion for citizens, which I think journalists should take it upon themselves to rectify, is the EU’s misleading top job names. Unfortunately in English the word “president” for people at EU institutions has been imported from French where it simply means someone who presides over meetings. As I’ve written before, the President of the European Parliament would be better translated into English as the “Speaker” in the British sense, and the President of the European Council, a position that was only invented in 2009, would be better translated as “Chairman” because their main job is to chair European Council summits of national leaders (in Finnish they actually do call him a chairman rather than a president). Ditto for all the other presidents (ECB, EESC, Eurogroup, etc), it just causes confusion. The EU does not have “five presidents”, as Michael Gove derisively claimed during the Brexit referendum as an illustration of how complex the union is. Using the word in its true Anglosphere sense, the only president is the person who heads the EU’s executive branch - the Commission.

How not to write your ‘this is how the EU works’ article

Really, all people need to know is those basics: the EU has an executive, a legislature, and a supreme court. The EU election is when you vote for the legislature’s lower house, and your vote in your national election is also a vote for the legislature’s upper house. But it’s never explained so simply. Every five years journalists seem to want to make this all seem as confusing as possible by adding in all kinds of extemporaneous information that is not important. But when writing about the US election, European journalists don’t start mentioning appropriations committees or Government Accountability Office. You would just mention the basics. Why wouldn’t you do that for the EU?

So here are some points I would make for journalists preparing their ‘what is the EU?’ pre-election pieces:

• The biggest black hole of knowledge is the Council, simultaneously the EU’s most powerful but also most opaque institution. Some might be tempted that it is actually (since a 2009 split) comprised of two institutions: the European Council (comprising the 27 presidents/prime ministers) and the Council of the EU (comprising various configurations of 27 national ministers). Don’t. It’s needlessly confusing. They are one thing pretending to be two. The only material differences are that the European Council gives the Commission strategic direction about policy proposals they want and the country holding the rotating presidency is only in charge of the Council of the EU, not the European Council which has a permanent president (so Viktor Orban technically will have no role as prime minister during Hungary’s presidency later this year, just as Macron wasn’t supposed to have a role). But all of this is needlessly confusing to readers and doesn’t need mentioning.

• The advisory bodies (the European Economic and Social Committee made up of employers and unions and the Committee of the Regions made up of regional lawmakers) should never, ever be mentioned. They only provide advice. They have absolutely no power and are treated as a punchline in Brussels. If you mention them in an EU explainer article you are either completely ignorant of how Brussels works or you are deliberately trying to confuse people.

• There are some exceptions to the normal legislative process I outlined above, such as when the legislature gives the Commission the power to directly make law via delegated acts or when laws are decided through more informal consultation with member states called comitology. These are rare, confusing and not worth mentioning (and yet I keep seeing them mentioned when people are writing about how confusing the EU is).

• The Commission President has a college of commissioners which is similar to a cabinet of ministers at national level. These commissioners are not faceless bureaucrats or “EU officials” as the media so often calls them. These are politicians who have been nominated by their national governments and confirmed by the European Parliament. It is very easy to explain this to people as being the equivalent of national secretaries/ministers (including the High Representative for Foreign Affairs who sits within the Commission college) and I don’t understand why the media doesn’t do it.

• The European Parliament makes its “travelling circus” journey from Brussels to Strasbourg once a month not as an on-purpose effort to bring the legislature around Europe in an effort to be closer to citizens (as I so often hear claimed) but because they are forced to go there against their will by France, which is enforcing the treaty designation of Strasbourg being the Parliament’s lone seat. There are technically three EU capital cities. The Commission was meant to be in Brussels, the Council in Luxembourg and the Parliament in Strasbourg. But that’s not how things worked out, and for a variety of reasons not worth going into, there is in reality only one EU capital, Brussels. The Parliament tried to move itself there three decades ago, to be close to the Council and Commission where the power is. France took them to the Court of Justice and won, and the compromise is to make them go to Strasbourg 12 times a year to pass laws. In short, this is not an “EU problem” but rather a member state problem caused by petty nationalism (France wants the Parliament to be in France).

• I would hope that this is an obvious one, but it’s misreported so often in the UK I’m afraid I have to include it. The Strasbourg-based Council of Europe has nothing to do with the EU and is not the same as the Council of the EU or the European Council (yes, I’ll concede, this one is legit confusing). The Council of Europe is a wider (barely-functioning) grouping of European countries which until recently included Russia and whose main impact is in the area of human rights. They don’t do much but they do run the European Court of Human Rights which issues non-binding advisory opinions and has nothing to do with the EU. The UK is still a member of the Council of Europe.

• The result of the European Parliament election will have a major influence on who becomes EU president, because that person must be confirmed by a majority vote of the Parliament. If Europeans vote in a big wave for the far right, they will end up with a hard-right EU president at the executive. June’s vote doesn’t only determine the composition of the parliament.

• The EU is not a bloc. It is at minimum a confederation (and has many but not all elements of being a federation). It is nothing comparable to the ‘Eastern Bloc’, to NAFTA, to NATO, to the UN or to the similarly-named African Union. If you write a ‘what is the EU?’ article intended to motivate people to vote in the EU election and you call the EU a bloc rather than what it is, a union that makes 60% of the laws that affect a citizen, you are actually discouraging people from turning out to vote. If the EU is just a free-trade-area club, why would people bother?

Lack of education

People who are from federal countries have an easier time grasping the EU’s concept of subsidiarity and split powers, and people from unitary centralized countries like France and the UK struggle. For Americans, we all have a course called “Social Studies” where we learn basic civics around the age of 14 (interestingly, although education is a completely state competence, all 50 states have chosen to do some version of this). We learn how a bill becomes a law (we even had a cute little cartoon to show us). We learn what our town is in charge of, what our state is in charge of, and what our federal government is in charge of. We learn the basics of how a bill becomes a law. What we don’t learn is the myriad complicated details of the legislative process that an ordinary citizen doesn’t need to know. We don’t learn what a House Select Committee is or how the US Governing Accountability Office functions, or the vagaries of peoples’ strange ceremonial titles in the US Senate. Our teachers are not trying to unnecessarily confuse us.

The quality or even existence of EU civics education (an entirely member state competence) varies widely within the union Generally speaking, it is best in the East and worst in the West. Why? Because the Eastern countries, all younger democracies, joined after the European Union after it had been converted into a confederation in 1992. Western European countries who joined earlier before the European Community was transformed into the European Union essentially never upgraded their civics lessons. Students in France, Spain, Britain, Ireland, Italy etcetera are still today either taught nothing about how the EU works or taught about it as if it was still just a loose club of free-trading countries who come together for summits, as if it was a United Nations for Europe. In Eastern Europe, generally speaking, students are at least taught the (very) basics of how the EU legislative process works (this is helped by the fact that smaller Eastern countries tend to send a higher caliber of politician to Brussels than larger Western countries, so a career in EU politics is seen as more desirable). The one big exception to this general East-West divide is Germany, which does some EU civics in the context of teaching students what their town does, what their land does, what their bund does and what their EU layer of government does. It’s taught, correctly, as a system with four ever-larger tiers. However I’ve been told by Germans that when it comes to that last tier, it’s not explained very well.

In the end, it’s a vicious circle. Most people aren’t taught as children what the EU is or how it works. So then when it’s time to vote, they don’t know what they’re voting for. The European media starts to feel a responsibility to tell them in the weeks leading up to the parliament vote every five years, but these journalists also themselves didn’t receive an education about what the EU is. So they go to Wikipedia and read about the Council of the EU, the Committee of the Regions, the five presidents and comitology and dump it all into their piece. Readers end up even more confused (and demoralised) than they started.

Deliberate overcomplication?

So, the concluding question to ask is - why? Why do national governments keep EU civics out of the syllabus when designing education curricula? Why do newspaper editors in national capitals refer to the EU as being ‘so complicated to understand’ that it’s not even worth bothering? And why do Brussels-based journalists, lobbyists and campaigners go along with this fiction?

The answer, to at least an extent, is self-interest. It is in every national capital’s interest to keep their citizens ignorant of how the EU works because the EU by its very nature is a challenge to national capitals’ power. If people don’t know how it works, then national leaders can easily blame the EU for whatever’s going wrong and take credit for whatever’s going right. They can rail against things decided in Brussels as being imposed upon the country by foreigners when in fact they themselves voted for that thing in the Council, the institution which most citizens know nothing about. I’ve seen so many instances of this over the years.

The chief fault lies in national capitals, but many in Brussels are willing participants in this game. Why do consultants and lobbyists send their clients such complicated explanations about a supposedly byzantine EU legislative process that only a Brussels-based person could possibly understand? Because they want to be the gatekeepers of the information, otherwise their utility is severely lessened. Ditto for Brussels-based journalists who jealously guard their turf. ‘Oh this stuff is very complicated, I only understand it because I’ve been here 15 years. You’d better leave it to me’.

Every five years, these ‘what is the EU?’ articles stress to us that actually these elections are very important, the European Parliament is a real thing, and you’d better go out to vote. But then they paint a picture of a sclerotic institution that nobody could ever possibly understand. It’s not exactly motivating. As someone who comes from a country where the legislature is in fact a very sclerotic institution - a Congress which is about the finish a term with the lowest amount of legislation ever passed in history (only beating the record set by the previous term) - it drives me crazy. The EU’s legislature is functioning normally and healthily. It is churning out huge amounts of legislation. If anything is a talking shop these days, it’s the US Congress.

As Nicolai von Ondarza recently observed, it is the intergovernmental “Crisis EU” (the European Council summits) which sucks up all the media attention and leaves people with the impression that the EU is some kind of crisis-solving UN for Europe which seems to be in perpetual inertia. It is that EU which is highly dysfunctional, for reasons I’ve written about in the past. Then there is the other side, the federal “Legislation EU”, which keeps humming along and is functioning more healthily than many national legislatures. But because it’s seen as more complicated, and people don’t have the educational context of frame of reference to understand the confederal system it administers, “Legislation EU” is largely ignored by the media.

If we want a strong Europe with strategic autonomy free from foreign dominance, then we all need to play our part in demystifying the EU’s federal structure. It is not a question of aspiration. This is not about trying to make the EU into a federation. This is about acknowledging the fact that in many ways it already is. And that’s what makes the European Parliament election on 6 June so important.