Leiden Law Blog

The clash of the institutions

Posted on by Judit Altena-Davidsen in Public Law
The clash of the institutions

Europe finally seems to have caught the eye of the Dutch public. However, public and academic attention (or worry, if you will) is limited to economic matters: the euro, eurobonds,, and banking. Yet also in other fields, the European Union is trembling: a hard clash occurred between the European Parliament and the Justice and Home Affairs Council, but has gone unnoticed by the newspapers, the numerous weblogs, and the political debate on the European Union.

The subject matter leading to the clash is the Schengen Evaluation Mechanism. Throughout the Schengen area individuals can cross the national borders of 26 European countries without being subject to structural custom control. The Schengen countries want to be able to reimpose border checks in cases of emergency, a desire fed by recent events in North Africa leading to unprecedented streams of migrants throughout the Schengen area. The Commission introduced a proposal for a new Schengen Evaluation Mechanism enabling exactly this unilateral temporary closing of borders without EU control. The Council, in which national justice and home affairs ministers represent their governments, strongly supports this proposal whilst the European Parliament, directly elected by European citizens and representing the interests of the European Union and its citizens, see the reintroduction of border checks as a serious threat to European integration. Recent problems with migrant flows are due to, so they say, insufficient and unsuccessful cooperation in the field of migration and asylum.

The Danish presidency of the Council was not expecting to reach a compromise anytime soon that would satisfy both institutions. Therefore it suggested the Council change the legal basis for the Evaluation Mechanism, and the Council agreed. Changing the legal basis meant that the Parliament would lose the right to decide on the Commission proposal, leaving only a ´consultative role´ for the Parliament. It is difficult to overstate the outrage among Members of the European Parliament provoked by this decision. The Danish minister Bødskov was called to defend the Council decision, but was unable to restore confidence, after which Parliament suspended cooperation with the Council on five important bills. Some Members of the European Parliament no longer recognised the Danish presidency as they saw the Council Decision as an attack on the fundaments of the EU.

Fundamental decisions are to be made on whether the member states want to cooperate more closely where free movement of citizens is concerned, or whether we have reached the stopping station of integration in this field. If the EU indeed gets a say on temporary border checks as desired by the Parliament, this will have to be accompanied by stronger cooperation in the field of asylum and migration in order to better facilitate free movement than currently is the case. Hence subjecting decisions on border checks to EU review would mean a strong impulse for closer cooperation. However, it might well be that the Schengen states are simply unwilling to give up autonomy over decisions they consider indispensable for their internal security. Either way, the cooperation in Schengen is at a crossroads.

The lack of public debate does however make me doubt whether I am right to attribute so much meaning to this clash. Might everything be forgotten and forgiven after the long summer recess? Will the Council offer Parliament a compromise with which it can take its loss without losing face? Is this only about the emancipation of the European Parliament? Or is the disinterest in the European Union so widespread and fundamental that not even the newspapers can force themselves to write about it? If the citizens of the EU couldn’t care less about their representatives being set aside in the legislative process then the recent attempts to make the EU more democratic may have been successful institutionally, but have utterly failed when it comes to engaging its citizens.

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