The role of national parliaments in the European Union: a case for reform?

The role of national parliaments in the European Union is one that is well established in European Union Law. A declaration annexed to the Maastricht Treaty inspired greater contribution from national parliaments through encouraging the exchange of information between them and the European Parliament and ensuring that proposals for legislation would be made in ‘good time for information and possible examination[1]’. This was followed by the Protocol on the Role of National Parliaments in the European Union of the Treaty of Amsterdam[2], which came into force in 1999 and offered a binding plan that ensured Commission documents would be forwarded to national parliaments with consultation documents. In 2009, the Lisbon Treaty set out a formal role for national parliaments with regards to the consideration of EU jurisdictive proposals. On face value, the changes brought by the Lisbon Treaty seem to enhance the role of national parliaments to increase democracy within the EU. On further analysis however, it could be argued that the Lisbon treaty fails to reduce the democratic deficit that many argue still very much exists. In this report I will be examining the role of national parliaments following the Lisbon treaty and whether this is model is an adequate one. I will also look to why national parliaments should have a role in EU decision-making, and what this role should be.

The role of national parliaments following Lisbon

 

The Lisbon Treaty of 2009, unlike its predecessors, established an official role for national parliaments in the scrutiny of EU legislative proposals. As KiIver states, the involvement of national parliaments in the EU legislative process has been one of the ‘most prominent features’ of the Treaty of Lisbon. Article 12 of the Treaty on European Union states that National Parliaments can ‘contribute actively to the good functioning of the Union’ in a number of ways. These include: through being informed of proposals, by taking part in inter-parliamentary dialogue and with the European Parliament, by taking part in treaty revision processes, and by seeing that the principle of subsidiarity is respected[3]. Subsidiarity is ultimately a key reason for the enhanced role of national parliaments and is embodied in the Protocol on the role of national Parliaments, which was appended to the Treaty. This Protocol allows national parliaments to send, within eight weeks of receiving the legislative proposal, a ‘reasoned opinion’ to the Commission, the European Parliament and the Council to state why they believe the proposal is incompatible with the principle of subsidiarity[4].

If one-third of the total number of EU national parliaments submit objections, the Commission is bound to review its proposal, but may withdraw, amend or keep it in force, in which case it must justify its decision. Similarly, if more than half of all votes reflect objections, but the Commission maintains the proposal, then an exceptional vote must take place in both the European Parliament and the Council, after which if a majority is reached, the proposal may be struck-down before its first reading[5]. Additionally, the Protocol on the Role of National Parliaments states that all draft legislative acts, Commission consultation documents, the annual legislative programme, as well as ‘any policy or legislative planning instrument’, will be sent directly to national parliaments, rather than from national governments to pass onto national parliaments[6]. While the central intention of these provisions seems to be to allow parliaments to exercise their views in the Council, how effective is this model?

Is the current model adequate?

 

In order to assess the role that national parliaments should have in the EU, as well as why they should have a role, we first need to assess whether the current model of national parliaments is an acceptable one. It could be argued that subsidiarity has conferred greater powers on national governments. As De Burca states: ‘the most important innovation in the Protocol on Subsidiarity is the enhanced role accorded to national parliaments[7]’. While the Lisbon Treaty enhances the role of national parliaments, it is dubious whether it does this as well as it sets out to. Chalmers states that the EU appears to ‘fail miserably’[8] with regards to its sentiment expressed in Article 10 of the Treaty on European Union that the EU is to be founded on representative democracy. Similarly, Many have argued that the democratic deficit within the EU has not been reduced due to the lack of a ‘red card’ veto system that compels the Commission to withdraw any proposal that jeopardies the subsidiarity principle[9]. In addition, Kiiver states that the Early Warning System is difficult to trigger, partly because ‘the thresholds are unattainably high[10]’. Similarly, Cobertt states that the direct scope of the Lisbon Treaty provisions affecting national parliaments are ‘relatively limited, especially when compared to the new powers given to the European Parliament[11]’. He goes on to say that there are wider structural and institutional constraints of the provisions, such as the fact that national parliaments have small staffs and have ‘less time, expertise and staff resources to devote to EU matters[12]’. This suggests that, while the provisions of the Lisbon Treaty seem adequate, on further analysis, perhaps they are not so. In the impact assessment of the Lisbon Treaty, the House of Lords European Union Committee suggested that that the eight-week period is insufficient to enable effectual response and feedback with regards to the legislative proposal[13]. The fact that the Commission gives private parties the opportunity to make submissions within eight weeks in its review procedures[14] reinforces this, as national parliaments are saddled with significant responsibilities and represent all its citizens’ interests. Thus giving both national parliaments and private parties the same amount of time appears unsubstantiated. All in all it seems that, while the provisions affecting national parliaments are quite numerous, they have clear limitations, and according to Chalmers, there are still concerns regarding the ‘parliamentary input in the processes and the extent to which EU law-making undermines parliamentary democracy’[15]. If this is the case, then how do we solve it? In other words, why should national parliaments have a role in the EU framework, and what should this role be?

What role should national parliaments play in shaping and scrutinizing EU decision-making?

 

Considering the fact that many EU parliaments are ‘still struggling to define their proper role in the European Union[16]’ even after the Lisbon Treaty has given them a formal role suggests that perhaps a new role, or a better-implemented role, is needed. One way in which the EU could address this is by designing a role for national parliaments under which the process of scrutinizing legislative proposals is facilitated for Member States. Perhaps one possible method that meets such criteria can come from the formation of a Conseil d’Etat, a body within the European Union that would exercise an advisory role in the EU legislative process. Although Kiiver insists that the Lisbon Treaty did bring about the emergence of a sort of Conseil d’Etat[17], as we have seen, this has its own problems. I believe that national parliaments can and should play a bigger role in scutinising EU legislative proposals through the formation of a proper Conseil d’Etat- resembling body. Such a body would consist of representatives from each EU national parliament, who will then come to a consensus among themselves regarding the legislative proposal in question. The key benefit of such a body is the impact that it would have on inter-parliamentary dialogue, which is a key reason for the ineffectiveness of the provisions concerning national parliaments. Similarly, such a body would make it easier for the thresholds required to be met, if indeed the procedure remains the same. Although on face value this could be seen as similar to the role of COSAC[18], I believe that it will be more gratifying. As the Hellenic Parliament’s Committee on European Affairs has pointed out, ‘the scope and role of COSAC have been reduced as a result of the two newly established interparliamentary Conferences on CFSP/CSDP and economic governance’. Secondly, I propose that a Conseil d’Etat would be an authentic and robust arm of the European Union, as opposed to the humble position of COSAC, whose conferences last an average of between one and two days. Indeed, although COSAC is acknowledged by the Protocol on the Role of National Parliaments in the European Union of the Treaty of Amsterdam[19], I do not think that this conference represents the same level of national interests that a Conseil d’Etat would provide for.

Additionally, I believe that the role of national parliaments should not be confined to infringements of only subsidiarity. They should also be given the ambit to decide on proportionality. The formal role of national parliaments affords them a role in subsidiarity, but not proportionality, which is the principle that the content and form of Union action shall not surpass what is necessary to achieve the objectives of the Treaty. Thus the reasoned objection submitted by a national parliament must relate to subsidiarity and not proportionality. This is regrettable considering the fact that they are closely intertwined. If national parliaments can write about one, why not the other? This is reinforced by Piedraftia, who states that ‘the proportionality principle should be included in the criteria, given that both principles are intrinsically connected and it is in the spirit of the Lisbon Treaty that the national parliaments also ensure compliance of legislative proposals with this principle[20]’.

In addition, it seems that it would be in the interests of all national parliaments to have a ‘red card’ procedure that would allow them to veto proposals for EU legislation. Foreign Secretary William Hague has expressed the view that the current ‘yellow card’ procedure should be promoted to an ‘emergency brake’ procedure that would permit parliaments to block such proposals[21]. Although this would be craved, I am unsure of how such a measure would fare. In my opinion, having such a system may result in the European Union emulating the United Nations, where the result of vetoing has had catastrophic effects on the greater global community, for example in Syria. Instead, perhaps if a legislative proposal does not suit a Member State, the European Union could make an exception for that country, and apply the legislation in all other Member States. This however is highly unrealistic and would lead to inconsistency and eventually the potential breakdown of the Union. Thus in my opinion, national parliaments should indeed have power to scrutinise legislative proposals, but not to veto them.

Although some may argue that national parliaments should take a more active role in actually shaping legislation, rather than just scutinising it, I do not think that this is a feasible option. Ultimately, the participation of 28 national parliaments sitting together to draw up legislation that suits all of them seems almost ludicrous. Comparably, although the Member States are an intrinsic part of the European Union, it is not their responsibility to be saddled with the work of drawing up legislation for the Union as well as for their own countries. If were to be in their hands, perhaps EU law would be put on a backseat.

Why should national parliaments have a role in the EU framework?

 

Today, there is a mutual feeling among many within and outside of the European Union that the EU suffers from democratic illegitimacy. Indeed, this is a feeling shared by many, to the extent that the term ‘democratic deficit’ has become synonymous with the European Union. As Kiiver has claimed, “in a debate where the mere mentioning of the word ‘democracy’ buys support, analytical sensitivity is…priceless[22].” There is widespread agreement that national parliaments could help fill the gaps in democracy and therefore strengthen the EU justifiably. Cygan for example states that the ‘active contribution’ referred to in the Lisbon Treaty provisions ‘creates an expectation that, collectively, national parliaments will inject democratic legitimacy to EU legislation[23]’. Clearly, increasing participation from national parliaments would nurture the parliamentary scrutiny of the governments at national level and thus ultimately lead to a better-suited law for the Member States. Furthermore, a more involved national parliament means that the citizen of the Member State is better represented. As Piedrafita states, this would ‘contribute to bring EU decisions and politics to the core of national debates and closer to citizens’[24]. A EU without the involvement of national parliaments would be the epitome of injustice. Yes, the Member States have committed to the EU, but that does not mean that they should be coerced or forced into implementing legislation that they deem undesirable for their nation. Thus there are clear and undeniable reasons as to why national parliaments should have a role in the EU framework.

Conclusion

In conclusion, I believe that it is clear that there are undeniable reasons as to why national parliaments should have a role in the EU framework. While there is no widespread agreement on what the role should be, ‘there is widespread agreement that national parliaments should have a role in the decision-making process’[25] People in Europe identify with their national parliaments more than with the EU, and national parliaments better understand the needs of their citizens. Similarly, Anderson states that the increase in European integration has increased executive power and decreased national parliamentary control[26]. I believe that a body similar to France’s Conseil D’Etat would be an effective means of encouraging inter-parliamentary dialogue so that national parliaments would have a greater and weightier say in the legislative process. I also believe however that giving national parliaments powers in the shaping of EU legislation would be unwarranted as, although to a lesser extent, national interests would already be voiced in the European Parliament.

When considering whether this role is realistic, we must look at the current influence of national parliaments in the EU and their access to information. The Protocol on the Role of National Parliaments in the European Union[27] makes it clear that the European Union takes it upon itself to distribute relevant information to national parliaments in order for them to be able to scrutinise the legislative proposal.

I believe that national parliaments have access to sufficient information under the provisions, but perhaps they do not have the requisite influence at EU level to make sufficient changes. However, I believe it is the responsibility of member states to push for legislative change. Indeed, a Conseil d’Etat would certainly facilitate this, but it is not a necessity. As the Italian Chambers of Deputies of Rome have pointed out, ‘National Parliaments can play a greater role if they perform more effectively their tasks and the rights already conferred by the Treaty[28]’. Thus, in my opinion, the role of national parliaments in the EU framework lies in scrutinising the policies of the EU collectively through inter-parliamentary dialogue. This area however is not in need of urgent reform, as, for the moment, COSAC seems to be handling this well. However, when the call for reform comes once again, I believe that this should be the way to go.

Umar SHAIKH

[1] Declaration 13 of the Maastricht Treaty (1992)

[2] Protocol on the Role of National Parliaments in the European Union of the Treaty of Amsterdam, 1999

[3] Article 12 TEU

[4] Article 4, Protocol (No 1) on the Role of National Parliaments in the European Union

[5] Article 7, Protocol (No.2) on the application of the Principles of Subsidiarity and Proportionality, TEU

[6] Article 5, Protocol (No.1) on the Role of National Parliaments in the European Union, TEU

[7] Paul Craig, EU Law: Text, Cases and Materials (5^th Edn, 2011) page 96

[8] Damian Chalmers, European Union Law: Cases and Materials (2^nd Edn, 2010) page 126

[9] Phillip Kiiver, ‘Subsidiarity, National Parliaments and the Lisbon Treaty’ [2007-8] HC 563, page 11

[10] Phillip Kiiver, ‘The early-warning system for the principle of subsidiarity: the national parliament as a Conseil d’Etat for Europe’ [2011] E.L.Rev.98, page 3

[11] Robert Corbett, The Evolving Roles of the European Parliament and of National Parliaments (OUP 2013) page 15

[12] Ibid at page 16.

[13] House of Lords European Union Committee, The Treaty of Lisbon: An Impact Assessment (Session 2007-08, 10^th Report, London, SO) paras. 11.50-11.53

[14] European Commission, General Principles and Minimum Standards for Consultation of Interested Parties by the Commission, COM (2002)704, 21

[15] Damian Chalmers, European Union Law: Cases and Materials (2^nd Edn, 2010) page 125

[16] Phillip Kiiver, ‘The early-warning system for the principle of subsidiarity: the national parliament as a Conseil d’Etat for Europe’ [2011] E.L.Rev.98, page 1

[17] Ibid

[18] COSAC: The Conference of Parliamentary Committees for Union Affairs

[19] Protocol on the Role of National Parliaments in the European Union of the Treaty of Amsterdam, 1999.

[20] Sonia Piedraftia, ‘EU Democratic Legitimacy and National Parliaments’ [2013] CEPS, page 6

[21] Soraya Kishtwari, ‘William Hague urges EU ‘red card’ system for nation states to block unwelcome laws from Brussels’ < http://www.independent.co.uk/news/uk/politics/william-hague-urges-eu-red-card-system-for-nation-states-to-block-unwelcome-laws-from-brussels-8639757.html > accessed 5^th January 2014

[22] Phillip Kiiver, The National Parliaments in the European Union: A critical View on EU Constitution-Building (Kluwer, The Hague, 2008) page 110

[23] Adam Cygan, ‘The parliamentarisation of EU decision-making? The impact of the Treaty of Lisbon on national parliaments’ [2011] E.L. Rev. 480, page 1

[24] Sonia Piedraftia, ‘EU Democratic Legitimacy and National Parliaments’ [2013] CEPS, page 3

[25] Gavin Barrett, University of Dublin, Written Submission to the House of Lords regarding the role of national parliaments in the European Union, page 1

[26] Svein Andersen, The European Union: How Democratic Is It? (Lon- don: Sage 1996) Page 258

[27] Protocol (No.1) on the Role of National Parliaments in the European Union, TEU

[28] House of Lords European Union Committee; The Role of National Parliaments in the Europen Union, Written Evidence, page 90