NATIONAL PARLIAMENTS IN THE
EUROPEAN UNION: Referees or Spectators?
From Rubber-Stampers to Guardians of
Subsidiarity
11/11/2014
Constitutional Law of the EU
OVERVIEW
1) Background and History
1) Legal Basis and Procedures
1) Practice and Proposals
1) Issues and Dilemmas
1) Conclusions and Perspectives
Constitutional Law of the EU
1. Background and History
l
“Cornerstones of constitutional democracies”
Peripheral position in the
landscape in the beginning
l
l
EU
institutional
Active role in “descending phase” of integration
Link to the European Parliament (originally “dual
mandates”)
l
Constitutional Law of the EU
1. Background and History
Problems:
National Parliaments (NPs) as “main losers and victims”
of EU integration process
l
l
“De-democratization & de-parliamentarisation” thesis
Democratic deficit (accountability and transparency) –
input and output legitimacy
l
Financial crisis in the Euro-zone – back to the center of
attention
l
Constitutional Law of the EU
1. Background and History
Chronology:
l
Maastrict Treaty 1992 – Final Act Declaration
l
Amsterdam Treaty 1997 – Protocol
l
Barroso Initiative 2006
Lisbon Treaty 2009 – turning point: NPs with “one
foot in and one foot out” of the EU
l
Constitutional Law of the EU
2. Legal Basis and Procedures
Article 12 TEU: NPs actively contribute to the good
functioning of the EU
New responsibilities:
l
monitoring principle of subsidiarity
l
participation in the EU evaluation and control mechanisms
l
role in the Treaty Revisions and new accessions
l
EU communication/notification procedures
l
veto power over “passarelle” clause
l
further inter-parliamentary cooperation, etc.
Constitutional Law of the EU
2. Legal Basis and Procedures
Monitoring
subsidiarity
–
Mechanism (EWM) procedure:
l
NPs as watchdogs of subsidiarity
l
Legislative acts
l
Area of shared competences
l
2 votes per NP
Early
Warning
Article 5 TEU and Protocol 2 on the Application of Principles
of Subsidiarity and Proportionality
l
Constitutional Law of the EU
2. Legal Basis and Procedures
Reminder – principle of subsidiarity:
“The Union shall act only if and in so far as the
objectives of the proposed action cannot be
sufficiently achieved by the Member States,
either at central level or at regional and local level,
but can rather, by reason of the scale or effects of
the proposed action, be better achieved at Union
level”.
Constitutional Law of the EU
2. Legal Basis and Procedures
Constitutional Law of the EU
2. Legal Basis and Procedures
EWM or “reasoned opinion” procedure (2):
Ordinary legislative procedure – 1/2 votes against –
“orange card” issued
l
Commission – if decides to maintain proposal, has to
justify it
l
Proposal goes to the Council and European
Parliament – possibility to reject in the first reading
(55% of votes in Council, simple majority in EP)
l
Constitutional Law of the EU
2. Legal Basis and Procedures
EWM or “reasoned opinion” procedure (3):
NPs (via governments) – legal action before the
ECJ for alleged breach of subsidiarity principle –
“red card” issued
l
Constitutional Law of the EU
2. Legal Basis and Procedures
Scrutinizing EU policies on national level:
European Affairs Committees, sectoral committees,
plenary chambers
lDominant
systems: document-based scrutiny,
mandating/procedural scrutiny, informal influence
l
Inter-parliamentary cooperation:
COSAC, Conference of Speakers, Conference on
CFSP and CDSP, Conference on Economic &
Financial Governance, etc.
l
Constitutional Law of the EU
3. Practice and Proposals
Possibility of drastically slowing legislative procedure
– increasing number of “veto players”
EWM not exercised often in practice – only two “yellow
l
cards” so far (no “orange” or “red” card)
NPs appear as a collective entity, “virtual third
chamber of the EU legislator”: affected by the
processes of Europeanization, transnationalization,
and bureaucratization
Constitutional Law of the EU
3. Practice and Proposals
Proposals for improvement of the EWM procedure:
l
Consolidation of NPs at EU level – institutionalized forum in
Bruxelles
l
Deadline – extended, threshold – lowered
l
Effect – stronger “yellow card”, burden of proof – reversed
l
Timing – “late card”
l
Initiative from NPs – “green card”
l
Procedure – standard formula for reasoned opinions, quality of
explanatory memorandums
l
Scope – include other principles in monitoring procedure
Constitutional Law of the EU
4. Issues and Dilemmas
Debate: EWM as legal or political
Subsidiarity as legal or political concept?
tool?
Negative constitutional check – legal review by
the NPs – why not ECJ or national Constitutional
Courts?
l
If political – what about representatives in the
Council? Is EWM proper parliamentary activity?
l
Constitutional Law of the EU
4. Issues and Dilemmas
Subsidiarity as vague concept? “No clear, detailed
or widely accepted definition of what constitutes
breach of subsidiarity”
Different definitions and interpretations in practice
lLacks
legal substance, not justiciable – ECJ:
“articulated but not defined”
lExact
and substantial definition and strict and
homogeneous interpretation necessary
lConnection
with proportionality and principle of
conferral?
l
Constitutional Law of the EU
4. Issues and Dilemmas
Early thoughts on subsidiarity:
“Prize of 200 000 pounds for clear definition of
subsidiarity... It only makes sense in a federal approach".
(Jacques Delors, ex-president of the Commission)
“A rich and prime example of gobbledygook”.
(Lord Mackenzie Stuart, former President of the ECJ)
Constitutional Law of the EU
5. Conclusions and Perspectives
a) Positive improvements for NPs, but they need
to be refined further (both from EU and national
level)
a) Challenges of internal reorganizations and
adaptation of NPs
a) Change of paradigm on national level, without
losing from sight main responsibilities: controlling
governments and direct contact with citizens
Constitutional Law of the EU
5. Conclusions and Perspectives
Possible future developments:
1) New supranational body – Committee of NPs
(ex ante legal opinion)
1) Advisory or quasi-judicial body – “subsidiarity
tribunal” (ex post legal review)
1) Second federalist/upper chamber
European Parliament – Chamber of NPs
Constitutional Law of the EU
of
the
List of Sources:
1)Hugo Brady: “The EU’s yellow card comes of age: Subsidiarity unbound?”, November 2013, available at:
2)http://www.cer.org.uk/insights/eus-yellow-card-comes-age-subsidiarity-unbound
1)Charles Grant: “Can national parliaments make the EU more legitimate?”, June 2013, available at:
2)http://euobserver.com/opinion/120438
1)Nicolaus Heinen: “Referees or spectators? National Parliaments and subsidiarity in the VIIIth European Parliament”, September 2014,
available at:
2)https://www.dbresearch.com/PROD/DBR_INTERNET_ENPROD/PROD0000000000343188/Referees+or+spectators%3F++National+Parliaments+and+subsidiarity+in+the+VIIIth+European+Parliame
nt.PDF
1)Theo Jans and Sonia Piedrafita: “The Role of National Parliaments in European Decision-Making”, January 2009, available at:
2)http://www.eipa.eu/files/repository/eipascope/20090709111616_Art3_Eipascoop2009_01.pdf
1)Philipp Kiiver: “The conduct of subsidiarity checks of EU legislative proposals by national parliaments: analysis, observations and practical
recommendations”, November 2011, available at:
2)http://link.springer.com/article/10.1007%2Fs12027-011-0234-8
1)Sonia Piedrafita: “EU Democratic Legitimacy and National Parliaments”, November 2013, available at:
2)http://www.ceps.eu/book/eu-democratic-legitimacy-and-national-parliaments
1)Tapio Raunio: “National Parliaments and European Integration - What we know and what we should know?”, January 2009, available at:
2)https://www.sv.uio.no/arena/english/research/publications/arena-publications/workingpapers/working-papers2009/WP09_02.pdf
1)Pieter De Wilde: “Why the Early Warning Mechanism does not Alleviate the Democratic Deficit?”, June 2012, available at:
2)http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2128463
1)Discussion Papers for Session 1 of the BTTD 2014: “Legitimizing EU Policymaking: What Role for National Parliaments?”, available at:
2)http://www.bruegel.org/fileadmin/bruegel_files/Events/Event_materials/2014/BTTD2014_Working_Paper_Session1_final.pdf
Constitutional Law of the EU