Executives, Legislatures, and the Semantics of EU Public Law: A Pandemic-Inflected Perspective

This contribution will serve as the epilogue to a forthcoming volume on executive-legislative relations in the European Union (EU). It begins by noting that the EU’s response to the coronavirus pandemic, encouraging though it may be in some respects, has nonetheless reminded us of the constraints placed on a system of supranational governance that lacks a legislative fiscal capacity of its own. Although there is much excitement about the pandemic ‘recovery fund’ built on borrowing against the EU budget (and distributed, at least in part, through grants), the fund will still be ultimately backed by the fiscal capacities of the member states severally rather than by the EU’s own. Autonomous fiscal capacity, however, is arguably the core attribute of a genuinely ‘constitutional’ form of governance, and more specifically of a genuinely constitutional ‘legislature’. The EU’s persistent lack of a fiscal capacity of its own leads this epilogue to pose an admittedly radical question: Semantically speaking, is it right even to speak of the EU possessing ‘legislative’ power at all, at least in the most robust sense of the term, when it otherwise lacks autonomous fiscal capacity? This question might seem bizarre given key features of the EU’s institutional system, notably the existence of an elected assembly—the European Parliament (EP)—as well as that body’s participation in something called the ‘ordinary legislative procedure’ (OLP) in order to make rules of general and prospective application to govern European integration. According to the ‘as if’-constitutional framing that dominates most legal analysis of the EU today, the EP and OLP are so-labelled for a simple reason: they are the focal points of ‘legislative’ power in the European system. And yet, might this labelling be misleading? Might both the EP and OLP merely serve to inject an electoral component into a regulatory system that is fundamentally executive-technocratic (ie administrative) in character? Might specifically ‘legislative’ power in the EU—in the sense of the legitimate-compulsory mobilization of fiscal and human resources—still be concentrated entirely at the national level? With these questions in mind, this epilogue examines the many stimulating topics covered by the chapters in this volume: the application of Rodrik’s famous ‘political trilemma of the world economy’ to the EU context; the role of the EP in counter-balancing the powers of the Commission, Council, and European Council; the expansion of national executive power as a consequence of integration—the so-called ‘deparliamentarisation’ phenomenon—which operates to the obvious detriment of national parliaments (NPs); and finally the respective roles of the EP and NPs, as the case may be, in such areas as trade policy, the supranational regulation of national budgets, as well as several former 'second’ and ‘third pillar’ domains (security, defense, foreign policy, justice and home affairs). Based on this discussion, this epilogue concludes by reflecting on whether the last decade of upheaval in the EU—from the Eurozone crisis to the current pandemic emergency—has brought the EU to a ‘critical juncture’, in which some form of supranationalised fiscal capacity is now in the offing and which, if realised, might then allow the EU to transcend the current but misleading ‘as if’ constitutionalism that continues to characterise discussions of EU public law.