Stelio MANGIAMELI, The role of National Parliaments in the European Union. Evidence given by Prof. Stelio Mangiameli to the House of Lords (settembre 2013)
THE ROLE OF NATIONAL PARLIAMENTS IN THE EUROPEAN UNION.
EVIDENCE GIVEN BY PROF. STELIO MANGIAMELI TO THE HOUSE OF LORDS
EVIDENCE GIVEN BY PROF. STELIO MANGIAMELI TO THE HOUSE OF LORDS
Full Professor of Constitutional Law & European Constitutional Law – University of Teramo.
Director of the Institute for the Study of Regionalism, Federalism and Self-Government – National Research Council of Italy.
Director of the Institute for the Study of Regionalism, Federalism and Self-Government – National Research Council of Italy.
1. National parliaments in the EU framework
2. Formal role of national parliaments
3. Dialogue and scrutiny of EU policies
4. Capacity of national parliaments
5. Other possible changes
1. National parliaments in the EU framework
One of the most significant and debated problems within the European constitutional architecture concerns the so-called democratic deficit in its institutions, and in particular in the Council, the solution to which would be a democratic legitimation of the indirect type. The principle is currently expressed in Art. 10 (2) TUE according to which “the Member states are represented in the European Council by their respective Heads of State or Government and in the Council by their respective governments, which in turn are democratically responsible before their National Parliaments or before their citizens”.
This two-tier level of legitimation, together with the direct representation of the citizens of the Union within the European Parliament, should ensure that the democratic principle is upheld thus giving legal force to the legislation produced by the European institutions.
It is however evident that this is a “weak” solution and that it assigns to national Parliaments a merely negative role in the sense that it attributes to them a task of exercising mere “supervision”, which is furthermore carried out a posteriori. This is true, albeit to a lesser extent, also for those EU Member States (e.g. Germany) that have implemented, under the aegis of the principle of “responsibility for integration” (Integrationsverantwortung), internal procedures for ensuring conformity of the position adopted in the Council by the Member State on the directives issued by their Parliament.
From this point of view, some (partial) steps forward have been made since the European Union (with the Maastricht, Amsterdam and Lisbon Treaties) attached direct importance to National Parliaments.
b) First of all there has been progress from the standpoint of the “information flow” in that both Articles 1 and 2 of Prot. 1 and Art. 4 of Prot. 2 ensure that draft legislative acts (and other acts) be immediately forwarded to the National Parliaments. In this phase it is evident that a fundamental role is played by the European Commission, which – as holder of the power of legislative initiative – is the institution that more than any other is burdened by the duty to inform Parliaments.
However this flow of information is extremely large and the number of acts that need to be mastered is so huge that Parliaments are finding it difficult to manage the information, in spite of the fact that they are assisted by particularly complex support structures that are endowed with staff that is specialized in legal matters, including matters related to EU Law.
Moreover, Parliaments have been given the possibility to use a number of instruments for bringing their position to the attention of the European institutions. In particular, it should be recalled that through the provisions contained in Protocols 1 and 2, national Parliaments are empowered to express their opinions on the draft legislative acts (and other acts) of the EU both from the standpoint of the “political dialogue” and above all from the standpoint of compliance with the subsidiarity principle. In the second case, furthermore, their participation in the procedure may give rise to a further burdening of procedures, if the numbers are large (see Art. 7 of Protocol no 2).
a) As emerges from the literature and as shown in paragraph 2, in either case the role of national Parliaments is becoming increasingly important in the sphere of EU law.
However, the direct instruments mentioned above are participatory only in a very broad sense and not in the strict sense; in short they are not deliberative. Hence, in the name of a meaningful implementation of the democratic principle, the Treaties should be reformed in the direction of strengthening the role of national Parliaments.
2. Formal role of national parliaments
a) The formal role attributed to national Parliaments by Art. 12 TUE consists above all in the power to submit opinions, which is the last step in a process whose origin can be traced back to the Maastricht Treaty and in particular to the Declaration on the role of National Parliaments in the European Union. With the subsequent reform of the Treaties (Amsterdam) this process was further advanced through the introduction of the Protocol on the application of the principles of subsidiarity and proportionality and of the Protocol on the role of National Parliaments in the European Union whose current formulation is the outcome of the last reform (Lisbon).
Submitting reasoned opinions is not however the only means that national Parliaments have to take part in the drafting of European acts.
The so-called “political dialogue” uses three instruments [1]: (1) the debates and general discussions at bilateral and multilateral levels in which an important role is played by the Conference of Parliamentary bodies specialized in Community and European affairs of the Parliaments of the European Union (COSAC); (2) the sharing of written opinions by National Parliaments, whose numbers increased further in 2012 (7% more than 2011) [2] and the answers by the Commission and (3) a series of other personal contacts or meetings that occurred during the year.
In line of principle it can be stated that in the light of the economic and financial difficulties currently being experienced by the European economies, as of late the political dialogue has focused mainly on these issues.
Also control by Parliaments on compliance with the principle of subsidiarity occurs by submitting a reasoned opinion, in accordance with the provision of Protocol 2 attached to the Treaty. Even though these opinions are different in terms of content from those concerning the political dialogue, the two instruments are often used in parallel by the legislative Assemblies. Also in this case there has been a steady increase in the attention paid by national Parliaments to European legislative acts as shown by the fact that in 2012 there was an overall 9% increase in the number of subsidiarity opinions submitted.
It must however be recalled that in checking the application of the principle of subsidiarity there is a considerable imbalance among national Parliaments. Suffice it to recall that the three most active Chambers in 2012 (in ranking order the Swedish Riksdag, the French Sénat and the German Bundesrat) formulated about 50% of all the reasoned opinions forwarded by national Parliaments in 2012. This means that the other Chambers gave a very small contribution to the matter of subsidiarity checks. On the other hand, it must be observed that the greater “activism” of the three mentioned chambers is a direct consequence of their role within their constitutional systems. Indeed, in the case of the Riksdag, the peculiar characteristics of the Swedish state are to be taken into account in terms of size of the population and social organization as a result of which Parliament has a workload that allows it to keep a closer eye on European acts. The activity of the other two Chambers, the French Sénat and the German Bundesrat, is to be related to the role played by these Chambers in their respective forms of government that allows them to concentrate in depth on this type of activity. Indeed, the Bundesrat is less active than the other National Chamber (Bundestag) in the making of laws; in the case of the French Senate instead, account needs to be kept of the fact that in the French system there is a “division” between laws and regulations in favour of the regulatory source, and hence the legislative activity is less intense.
b) As is well known, the number of subsidiarity opinions may entail the consequence of activating the yellow card or orange card mechanisms whose actual usefulness may reasonably be questioned. Indeed the Chambers of National Parliaments have used the yellow card mechanism only recently for the first time with regard to the “Draft regulation on the exercise of the right to promote class actions with regard to the freedom of establishment and of providing services” (Monti II), whereas to date there have been no cases where the orange card mechanism was used.
c) These poor results seem to be attributable among other things to the different ways in which the notion of the principle of subsidiarity is interpreted across Member States. This is pointed out even by the European Commission in the mentioned annual report (2012) on the principle of subsidiarity. In particular, it refers to the eighteenth half-year report of COSAC, which states that “a large majority of national Parliaments report that their reasoned opinions are often based on a broader interpretation of the principle of subsidiarity than the wording in Protocol No 2. For example, the Dutch Eerste Kamer believes that ‘it is not possible to exclude the principles of legality and proportionality when applying the subsidiarity check …’. The Czech Senát is of the opinion that subsidiarity has a ‘general and abstract nature … is not a strict and clear legal concept’ and therefore a broad interpretation should be used. The UK House of Lords gave a similar view, arguing in favour of a wider interpretation of this principle because ‘although the principle is a legal concept, in practice its application depends on political judgement’” (European Commission, Report from the Commission, Annual Report 2012 on Subsidiarity and Proportionality, Bruxelles 30.7.2013, COM(2013) 566 final, p.4).
It must also be pointed out that it is not only the “ideal” qualification of the principle of subsidiarity that differs in the EU Member States but also its application in the sense that the principle of subsidiarity has reached different levels of “maturation” in the individual States, because only for some of them (above all the States having a federal structure like Germany or a regional structure like Italy) can we say that subsidiarity is a notion that has been fully acquired albeit not widely applied. Hence it would be appopriate for the European Union to undertake a “harmonization” process so as to develop an idem sentire of the subsidiarity principle.
d) In this framework, the principle of proportionality takes on a marginal role. On the one hand, formally, it is not emphasized in Protocol 2 because the reasoned opinions envisaged in Art. 6 should be restricted to checking compliance with the subsidiarity principle (the only one mentioned there) but it is evident that the two notions are intimately connected. In any case, the remarks concerning the principle of proportionality brought to the attention of the European Institutions do not appear to obtain the desired effect (see paragraph 3). The picture that emerges from the “criticalities” of the oversight system of European acts by national Parliaments suggests the need to rethink their participation in the European legislative procedure in the ways indicated in paragraph 5 on the reform proposals.
3. Dialogue and scrutiny of EU policies
a) In general we might state that in the European Union a closer (and mutual) relationship is being shaped between the European Institutions and the National Parliaments. This idea is borne out by the growing number of opinions sent by the national parliamentarians (both with regard to the so-called political dialogue and with regard to subsidiarity checks).
However the role of national parliaments does not appear to be significant, especially if one looks at the consequences produced by the opinions submitted. Indeed, even though it is true that the European Institutions, and in particular the Commission, always respond (in application of the Barroso procedure), this hardly ever turns into a reformulation of the legislative draft. On the contrary, often the Commission uses this “response” to confirm its position on respect for the subsidiarity principle (or on the political opportuneness of the act).
The most evident proof of this is the outcome of the draft act for which the first yellow card mechanism was activated. Reading the 2012 Report of the Commission on the principle of subsidiarity, it states that “following an in-depth evaluation of the arguments submitted by national Parliaments in their reasoned opinions, (...) it concluded that there was no violation of the subsidiarity principle”. Hence even in that case the national remarks were not considered to be “sufficient”.
The subsequent withdrawal of the proposal was not caused by the joint action of the parliaments but by an acknowledgement by the Commission that the proposal would not obtain the political support by the European Parliament and Council required for it to be adopted.
Consequently these two Institutions are the true “masters” of the legislative activity. Hence until the national Parliaments do not succeed in becoming co-legislators (for instance they could take the place of the Council as is being suggested here; see paragraph 5), they will never have any real instrument for taking a significant part in the European legislative activity.
c) This conclusion is all the more true in the light of the procedural practice that is becoming consolidated, among which the increase in cases where the legislative act is adopted following the first reading. Indeed, it is clear that this fact implies that the Commission, in promoting the legislative proposals, should beforehand make sure that the two co-legislators are in sufficient agreement (Parliament and the Council). Achieving this result is an exhausting exercise which is hence a deterrent against having the drafts re-examined following the parliamentarians’ observations. Indeed, their acceptance could thwart the positive outcome of the laborious mediation work.
b), d), e) Taking into account these empirical data suggests that the current mechanisms providing a connection between the European Parliament and the national parliamentarians, and among the national Parliaments themselves (COSAC, Joint Parliamentary Meetings, Joint Committee Meetings, IPEX and informal meetings), albeit pursuing a praiseworthy intention, are still too weak.
From this standpoint an opportunity for upgrading them could derive from Art. 13 of the Treaty on Stability Coordination and Governance in the Economic and Monetary Union, according to which “(…) the European Parliament and the National Parliaments of the Contracting Parties will together determine the organisation and promotion of a conference of representatives of the relevant committees of the European Parliament and representatives of the relevant committees of national Parliaments in order to discuss budgetary policies and other issues covered by this Treaty”.
The implementation of this provision could constitute a way for softening the effects that are being produced because of the financial crisis. The latter has deprived several Member States of the European Union of many further “portions” of their sovereignty especially in matters related to their economic and financial policy. This however has not been followed by a further advancement of the European integration process but, quite to the contrary, there has been a downright loss of sovereignty by (some) Member States whose decisions in terms of budget policy have been “shifted” into the hands of bodies that are not democratically accountable to the citizens affected by such measures.
4. Capacity of national parliaments
a) Even though, as already pointed out, the level of information and attention paid to the drafting of EU law has undoubtedly grown within national Parliaments, and hence they are aware of the relationship with the European legal order, their efficiency in political dialogue is not comparable with the capacity of asserting the responsibility of the respective governments.
In the current stage of the process of European integration, national Parliaments continue to play a weak or in any case a non decisive role vis-à-vis the EU policies. Indeed, any comparison in terms of accountability between national Parliaments on the one hand and the European institutions and national governments, on the other, is ill-defined. In the constitutional practice of EU Member States, the parliamentarization of the system is so strong that it gives rise to a democratic circuit that supports the policies pursued by the public apparatuses. This is something that is not present in the European order and its absence is cause of discomfort especially if one considers that the evolution of the European integration process depends on it.
b), c), d) Hence we need to acknowledge the fact that, in the current stage of the integration process, there is a demand for the “parliamentarization” of the system that cannot be ignored. It is not by chance that national parliaments have given rise to unprecedented procedures for optimizing their work in order to contribute to the drafting of European acts, among which stands out the frequent use of mechanisms (established by law or through parliamentary regulations) that are functional to achieving a rapid and effective result in terms of participation. Suffice it to say that some Member States have decided to attribute the competence of the issuing of reasoned opinions not to the plenum of the parliamentary Assemblies, but directly to some parliamentary Committees, as in the case of the Europakammer of the German Bundesrat. In this connection mention can be made also of Spain that set up the Comisión Mixta para la Unión Europea, which has been given the power to use both votes of the Spanish Parliament to check compliance with the subsidiarity principle.
Therefore if there is a political will to continue along this direction it is not exaggerated to state that there is scope for giving rise to a general overhaul of the European constitutional architecture, that may lead to an actual representation of national parliaments within the form of government of the European Union, going well beyond the albeit praiseworthy work done today by the Network of national parliament representatives.
5. Other possible changes
In the light of the foregoing, we need to acknowledge that the true quantum leap for the role of National Parliaments should be a form of participation in the deliberative stage of legislative acts which – obviously – requires a reform of the Treaties.
From this point of view, by duly making a distinction between legislative functions and executive functions, one might think of replacing, for the former, the Council with a European Chamber of Parliaments (as proposed by Giscard d`Estaing and Joschka Fischer). According to the criterion of degressive proportionality, this body should consist of about 300 delegates from Member States holding a national parliamentary mandate, very much like the European Parliament as it was in the beginning. In this way, when called upon to vote at political elections, the citizens of the various Member States, would at the same time give democratic legitimation to both national Parliament and this European Chamber of Parliaments.
It could also be envisaged that, from an internal point of view, Member States could be free to impose, if desirable, a binding mandate given to such delegates so that they would have to comply “en bloc” with the guidelines laid down by their respective Parliaments, using all the votes available to the Member State. However, if this power were to be envisaged, for self-evident reasons of fairness, holding a European mandate would be incompatible with the national mandate which means that upon being appointed delegate to the European Chamber he/she would step down from being a member of Parliament at home.
It is however evident that such a distinction in the roles of the two bodies commands a review of the composition of the European Parliament and its voting system that cannot continue to be based on individual national regulations.
From a first standpoint, a true representativeness of European citizens demands that the principle of degressive proportionality be removed in favour of the adoption of a system whereby the number of representatives per Member States be directly proportionate to the Country’s population. However this should not exclude the minimum “clause of protection” assigning at least one seat to those States that do not reach the quorum required to have access to a seat.
From a second point of view we must emphasize that the lack of a uniform electoral system is an obstacle against the creation of a true European “politics” and of authentic European parties that are transversal to national interests (or would be even indifferent to them).
A uniform electoral procedure would attenuate the influence that the national “provenance” of the Member would play in his active European policy. Furthermore it is clear that achieving this goal requires that a uniform electoral system would require that the European political parties be well grounded in the Member States, which would be guaranteed by systems requiring that candidates should come only from parties that are of European importance.
As regards the electoral formula, two alternatives seem to be possible. On the one hand there could be a proportional system with an electoral threshold at national level where the constituencies would coincide with the States and the sub-constituencies would be established by a European regulation.
On the other hand a first-past-the-post voting system would also be satisfactory, based on single member constituencies, they too delineated in a European regulation.
In both cases, envisaging that the candidate to the Presidency of the Commission be explicitly indicated (even though not formalized in an act) by the European political parties would be useful for bringing European politics closer to public opinion.
If this change is made it would also be possible to amend the existing jumbled legislative procedure (Art. 294 TEU), tailoring it to the type of European competence involved.
It must be said that this idea arises from the fact that both changes being suggested would entail the European institutions to embrace the federal theory according to which one of the two Chambers making up Parliament is the expression of the Federation and of its people, while the other is the expression of the Member States. Indeed, accepting the reform proposal would entail the final consolidation of the first role that the European Parliament should have with regard to which it is already envisaged that “citizens are directly represented at the level of the Union in the European Parliament” (Art. 10 (2) TUE), while the second role would be played by the European Chamber of Parliaments within which the exponential nature of national interests would emerge even more clearly.
Once this separation of roles is made, as described above, the system would be “ready” to accept a different involvement of the two European “Chambers” (the European Parliament on the one hand, and the European Chamber of Parliaments, on the other), depending on whether the matters at hand are of exclusive EU competence or not (Art. 3 TFUE). In the first case one could only ask for approval of the legislative act by the European Parliament, unless the other Chamber requests (a certain number of States or of Parliamentarians) that the legislative act be put before it. For other competences, the draft legislative act would have to be discussed by both chambers.
If the role of National Parliaments and of the democratic principle are to be truly enhanced, the right of legislative initiative needs to be amended in the sense of expanding it to other bodies.
Actually it must be pointed out that the current system under which the right of legislative initiative is restricted to the Commission, is an (almost) necessary reflection of the European ordinary right to initiative (Art. 294 TFUE), where the Commission is conceived of as a sort of “mediator” that (1) promotes only the draft laws that it deems will receive a good level of consent by the two co-legislators (Parliament and Council) and (2) it tries in various ways, during the procedure, to get the co-legislators to reach a common position. Moreover, apart from this evaluation of it being opportune, the literature has pointed out that the circumstance that the European parliamentarians do not enjoy the right of legislative initiative constitutes an open anomaly within the forms of parliamentarian government.
However, the solution to these issues would be easy in a modified institutional framework in the sense described above, because there would be a true “parliamentarization” of the legislative procedure and, more in general, of the European form of government, that would no longer justify the fact that the right of legislative initiative lies only with the Commission. Indeed, the right of legislative initiative could be extended also to each member of both “Chambers”. It goes without saying that the legislative initiative of the members of the European Chamber of Parliaments might be restricted to the draft laws concerning the legislative competences other than those exclusive to the EU. This shortcoming could however be offset by envisaging that the right of legislative initiative be attributed to the national Parliaments (or individual Chambers to which they belong). On the other hand such powers given to regional legislative assemblies is not new among European forms of government, as for instance in Italy.
In such a reviewed framework for exercising European legislative powers, the current provisions contained in Protocols 1 and 2 could be weakened or even repealed provided that the aims they pursue were guaranteed (in an even more efficient manner) by the parliamentarization of the system.
The reform of the European form of government along the lines suggested here entails also a change in the attribution of executive powers.
Indeed, the proposed changes make it finally possible to operate the principle of the separation of powers also in the order of the European Union. Legislative power would authentically be itself and “self-sufficient”, once it were freed from the attribution of the right to legislative initiative to the Commission and there would also be the space to attribute to the latter the role of “Government” of the European Union the members of which would continue to be assigned upon indication of the national governments and would be politically accountable (only) to the European Parliament. The Commission therefore should be given executive powers authorized in the legislative acts for which besides recourse to the so-called comitology mechanism there could also be the opinions of the Parliamentary Committees of the European Chamber of Parliaments.
One of the most significant and debated problems within the European constitutional architecture concerns the so-called democratic deficit in its institutions, and in particular in the Council, the solution to which would be a democratic legitimation of the indirect type. The principle is currently expressed in Art. 10 (2) TUE according to which “the Member states are represented in the European Council by their respective Heads of State or Government and in the Council by their respective governments, which in turn are democratically responsible before their National Parliaments or before their citizens”.
This two-tier level of legitimation, together with the direct representation of the citizens of the Union within the European Parliament, should ensure that the democratic principle is upheld thus giving legal force to the legislation produced by the European institutions.
It is however evident that this is a “weak” solution and that it assigns to national Parliaments a merely negative role in the sense that it attributes to them a task of exercising mere “supervision”, which is furthermore carried out a posteriori. This is true, albeit to a lesser extent, also for those EU Member States (e.g. Germany) that have implemented, under the aegis of the principle of “responsibility for integration” (Integrationsverantwortung), internal procedures for ensuring conformity of the position adopted in the Council by the Member State on the directives issued by their Parliament.
From this point of view, some (partial) steps forward have been made since the European Union (with the Maastricht, Amsterdam and Lisbon Treaties) attached direct importance to National Parliaments.
b) First of all there has been progress from the standpoint of the “information flow” in that both Articles 1 and 2 of Prot. 1 and Art. 4 of Prot. 2 ensure that draft legislative acts (and other acts) be immediately forwarded to the National Parliaments. In this phase it is evident that a fundamental role is played by the European Commission, which – as holder of the power of legislative initiative – is the institution that more than any other is burdened by the duty to inform Parliaments.
However this flow of information is extremely large and the number of acts that need to be mastered is so huge that Parliaments are finding it difficult to manage the information, in spite of the fact that they are assisted by particularly complex support structures that are endowed with staff that is specialized in legal matters, including matters related to EU Law.
Moreover, Parliaments have been given the possibility to use a number of instruments for bringing their position to the attention of the European institutions. In particular, it should be recalled that through the provisions contained in Protocols 1 and 2, national Parliaments are empowered to express their opinions on the draft legislative acts (and other acts) of the EU both from the standpoint of the “political dialogue” and above all from the standpoint of compliance with the subsidiarity principle. In the second case, furthermore, their participation in the procedure may give rise to a further burdening of procedures, if the numbers are large (see Art. 7 of Protocol no 2).
a) As emerges from the literature and as shown in paragraph 2, in either case the role of national Parliaments is becoming increasingly important in the sphere of EU law.
However, the direct instruments mentioned above are participatory only in a very broad sense and not in the strict sense; in short they are not deliberative. Hence, in the name of a meaningful implementation of the democratic principle, the Treaties should be reformed in the direction of strengthening the role of national Parliaments.
2. Formal role of national parliaments
a) The formal role attributed to national Parliaments by Art. 12 TUE consists above all in the power to submit opinions, which is the last step in a process whose origin can be traced back to the Maastricht Treaty and in particular to the Declaration on the role of National Parliaments in the European Union. With the subsequent reform of the Treaties (Amsterdam) this process was further advanced through the introduction of the Protocol on the application of the principles of subsidiarity and proportionality and of the Protocol on the role of National Parliaments in the European Union whose current formulation is the outcome of the last reform (Lisbon).
Submitting reasoned opinions is not however the only means that national Parliaments have to take part in the drafting of European acts.
The so-called “political dialogue” uses three instruments [1]: (1) the debates and general discussions at bilateral and multilateral levels in which an important role is played by the Conference of Parliamentary bodies specialized in Community and European affairs of the Parliaments of the European Union (COSAC); (2) the sharing of written opinions by National Parliaments, whose numbers increased further in 2012 (7% more than 2011) [2] and the answers by the Commission and (3) a series of other personal contacts or meetings that occurred during the year.
In line of principle it can be stated that in the light of the economic and financial difficulties currently being experienced by the European economies, as of late the political dialogue has focused mainly on these issues.
Also control by Parliaments on compliance with the principle of subsidiarity occurs by submitting a reasoned opinion, in accordance with the provision of Protocol 2 attached to the Treaty. Even though these opinions are different in terms of content from those concerning the political dialogue, the two instruments are often used in parallel by the legislative Assemblies. Also in this case there has been a steady increase in the attention paid by national Parliaments to European legislative acts as shown by the fact that in 2012 there was an overall 9% increase in the number of subsidiarity opinions submitted.
It must however be recalled that in checking the application of the principle of subsidiarity there is a considerable imbalance among national Parliaments. Suffice it to recall that the three most active Chambers in 2012 (in ranking order the Swedish Riksdag, the French Sénat and the German Bundesrat) formulated about 50% of all the reasoned opinions forwarded by national Parliaments in 2012. This means that the other Chambers gave a very small contribution to the matter of subsidiarity checks. On the other hand, it must be observed that the greater “activism” of the three mentioned chambers is a direct consequence of their role within their constitutional systems. Indeed, in the case of the Riksdag, the peculiar characteristics of the Swedish state are to be taken into account in terms of size of the population and social organization as a result of which Parliament has a workload that allows it to keep a closer eye on European acts. The activity of the other two Chambers, the French Sénat and the German Bundesrat, is to be related to the role played by these Chambers in their respective forms of government that allows them to concentrate in depth on this type of activity. Indeed, the Bundesrat is less active than the other National Chamber (Bundestag) in the making of laws; in the case of the French Senate instead, account needs to be kept of the fact that in the French system there is a “division” between laws and regulations in favour of the regulatory source, and hence the legislative activity is less intense.
b) As is well known, the number of subsidiarity opinions may entail the consequence of activating the yellow card or orange card mechanisms whose actual usefulness may reasonably be questioned. Indeed the Chambers of National Parliaments have used the yellow card mechanism only recently for the first time with regard to the “Draft regulation on the exercise of the right to promote class actions with regard to the freedom of establishment and of providing services” (Monti II), whereas to date there have been no cases where the orange card mechanism was used.
c) These poor results seem to be attributable among other things to the different ways in which the notion of the principle of subsidiarity is interpreted across Member States. This is pointed out even by the European Commission in the mentioned annual report (2012) on the principle of subsidiarity. In particular, it refers to the eighteenth half-year report of COSAC, which states that “a large majority of national Parliaments report that their reasoned opinions are often based on a broader interpretation of the principle of subsidiarity than the wording in Protocol No 2. For example, the Dutch Eerste Kamer believes that ‘it is not possible to exclude the principles of legality and proportionality when applying the subsidiarity check …’. The Czech Senát is of the opinion that subsidiarity has a ‘general and abstract nature … is not a strict and clear legal concept’ and therefore a broad interpretation should be used. The UK House of Lords gave a similar view, arguing in favour of a wider interpretation of this principle because ‘although the principle is a legal concept, in practice its application depends on political judgement’” (European Commission, Report from the Commission, Annual Report 2012 on Subsidiarity and Proportionality, Bruxelles 30.7.2013, COM(2013) 566 final, p.4).
It must also be pointed out that it is not only the “ideal” qualification of the principle of subsidiarity that differs in the EU Member States but also its application in the sense that the principle of subsidiarity has reached different levels of “maturation” in the individual States, because only for some of them (above all the States having a federal structure like Germany or a regional structure like Italy) can we say that subsidiarity is a notion that has been fully acquired albeit not widely applied. Hence it would be appopriate for the European Union to undertake a “harmonization” process so as to develop an idem sentire of the subsidiarity principle.
d) In this framework, the principle of proportionality takes on a marginal role. On the one hand, formally, it is not emphasized in Protocol 2 because the reasoned opinions envisaged in Art. 6 should be restricted to checking compliance with the subsidiarity principle (the only one mentioned there) but it is evident that the two notions are intimately connected. In any case, the remarks concerning the principle of proportionality brought to the attention of the European Institutions do not appear to obtain the desired effect (see paragraph 3). The picture that emerges from the “criticalities” of the oversight system of European acts by national Parliaments suggests the need to rethink their participation in the European legislative procedure in the ways indicated in paragraph 5 on the reform proposals.
3. Dialogue and scrutiny of EU policies
a) In general we might state that in the European Union a closer (and mutual) relationship is being shaped between the European Institutions and the National Parliaments. This idea is borne out by the growing number of opinions sent by the national parliamentarians (both with regard to the so-called political dialogue and with regard to subsidiarity checks).
However the role of national parliaments does not appear to be significant, especially if one looks at the consequences produced by the opinions submitted. Indeed, even though it is true that the European Institutions, and in particular the Commission, always respond (in application of the Barroso procedure), this hardly ever turns into a reformulation of the legislative draft. On the contrary, often the Commission uses this “response” to confirm its position on respect for the subsidiarity principle (or on the political opportuneness of the act).
The most evident proof of this is the outcome of the draft act for which the first yellow card mechanism was activated. Reading the 2012 Report of the Commission on the principle of subsidiarity, it states that “following an in-depth evaluation of the arguments submitted by national Parliaments in their reasoned opinions, (...) it concluded that there was no violation of the subsidiarity principle”. Hence even in that case the national remarks were not considered to be “sufficient”.
The subsequent withdrawal of the proposal was not caused by the joint action of the parliaments but by an acknowledgement by the Commission that the proposal would not obtain the political support by the European Parliament and Council required for it to be adopted.
Consequently these two Institutions are the true “masters” of the legislative activity. Hence until the national Parliaments do not succeed in becoming co-legislators (for instance they could take the place of the Council as is being suggested here; see paragraph 5), they will never have any real instrument for taking a significant part in the European legislative activity.
c) This conclusion is all the more true in the light of the procedural practice that is becoming consolidated, among which the increase in cases where the legislative act is adopted following the first reading. Indeed, it is clear that this fact implies that the Commission, in promoting the legislative proposals, should beforehand make sure that the two co-legislators are in sufficient agreement (Parliament and the Council). Achieving this result is an exhausting exercise which is hence a deterrent against having the drafts re-examined following the parliamentarians’ observations. Indeed, their acceptance could thwart the positive outcome of the laborious mediation work.
b), d), e) Taking into account these empirical data suggests that the current mechanisms providing a connection between the European Parliament and the national parliamentarians, and among the national Parliaments themselves (COSAC, Joint Parliamentary Meetings, Joint Committee Meetings, IPEX and informal meetings), albeit pursuing a praiseworthy intention, are still too weak.
From this standpoint an opportunity for upgrading them could derive from Art. 13 of the Treaty on Stability Coordination and Governance in the Economic and Monetary Union, according to which “(…) the European Parliament and the National Parliaments of the Contracting Parties will together determine the organisation and promotion of a conference of representatives of the relevant committees of the European Parliament and representatives of the relevant committees of national Parliaments in order to discuss budgetary policies and other issues covered by this Treaty”.
The implementation of this provision could constitute a way for softening the effects that are being produced because of the financial crisis. The latter has deprived several Member States of the European Union of many further “portions” of their sovereignty especially in matters related to their economic and financial policy. This however has not been followed by a further advancement of the European integration process but, quite to the contrary, there has been a downright loss of sovereignty by (some) Member States whose decisions in terms of budget policy have been “shifted” into the hands of bodies that are not democratically accountable to the citizens affected by such measures.
4. Capacity of national parliaments
a) Even though, as already pointed out, the level of information and attention paid to the drafting of EU law has undoubtedly grown within national Parliaments, and hence they are aware of the relationship with the European legal order, their efficiency in political dialogue is not comparable with the capacity of asserting the responsibility of the respective governments.
In the current stage of the process of European integration, national Parliaments continue to play a weak or in any case a non decisive role vis-à-vis the EU policies. Indeed, any comparison in terms of accountability between national Parliaments on the one hand and the European institutions and national governments, on the other, is ill-defined. In the constitutional practice of EU Member States, the parliamentarization of the system is so strong that it gives rise to a democratic circuit that supports the policies pursued by the public apparatuses. This is something that is not present in the European order and its absence is cause of discomfort especially if one considers that the evolution of the European integration process depends on it.
b), c), d) Hence we need to acknowledge the fact that, in the current stage of the integration process, there is a demand for the “parliamentarization” of the system that cannot be ignored. It is not by chance that national parliaments have given rise to unprecedented procedures for optimizing their work in order to contribute to the drafting of European acts, among which stands out the frequent use of mechanisms (established by law or through parliamentary regulations) that are functional to achieving a rapid and effective result in terms of participation. Suffice it to say that some Member States have decided to attribute the competence of the issuing of reasoned opinions not to the plenum of the parliamentary Assemblies, but directly to some parliamentary Committees, as in the case of the Europakammer of the German Bundesrat. In this connection mention can be made also of Spain that set up the Comisión Mixta para la Unión Europea, which has been given the power to use both votes of the Spanish Parliament to check compliance with the subsidiarity principle.
Therefore if there is a political will to continue along this direction it is not exaggerated to state that there is scope for giving rise to a general overhaul of the European constitutional architecture, that may lead to an actual representation of national parliaments within the form of government of the European Union, going well beyond the albeit praiseworthy work done today by the Network of national parliament representatives.
5. Other possible changes
In the light of the foregoing, we need to acknowledge that the true quantum leap for the role of National Parliaments should be a form of participation in the deliberative stage of legislative acts which – obviously – requires a reform of the Treaties.
From this point of view, by duly making a distinction between legislative functions and executive functions, one might think of replacing, for the former, the Council with a European Chamber of Parliaments (as proposed by Giscard d`Estaing and Joschka Fischer). According to the criterion of degressive proportionality, this body should consist of about 300 delegates from Member States holding a national parliamentary mandate, very much like the European Parliament as it was in the beginning. In this way, when called upon to vote at political elections, the citizens of the various Member States, would at the same time give democratic legitimation to both national Parliament and this European Chamber of Parliaments.
It could also be envisaged that, from an internal point of view, Member States could be free to impose, if desirable, a binding mandate given to such delegates so that they would have to comply “en bloc” with the guidelines laid down by their respective Parliaments, using all the votes available to the Member State. However, if this power were to be envisaged, for self-evident reasons of fairness, holding a European mandate would be incompatible with the national mandate which means that upon being appointed delegate to the European Chamber he/she would step down from being a member of Parliament at home.
It is however evident that such a distinction in the roles of the two bodies commands a review of the composition of the European Parliament and its voting system that cannot continue to be based on individual national regulations.
From a first standpoint, a true representativeness of European citizens demands that the principle of degressive proportionality be removed in favour of the adoption of a system whereby the number of representatives per Member States be directly proportionate to the Country’s population. However this should not exclude the minimum “clause of protection” assigning at least one seat to those States that do not reach the quorum required to have access to a seat.
From a second point of view we must emphasize that the lack of a uniform electoral system is an obstacle against the creation of a true European “politics” and of authentic European parties that are transversal to national interests (or would be even indifferent to them).
A uniform electoral procedure would attenuate the influence that the national “provenance” of the Member would play in his active European policy. Furthermore it is clear that achieving this goal requires that a uniform electoral system would require that the European political parties be well grounded in the Member States, which would be guaranteed by systems requiring that candidates should come only from parties that are of European importance.
As regards the electoral formula, two alternatives seem to be possible. On the one hand there could be a proportional system with an electoral threshold at national level where the constituencies would coincide with the States and the sub-constituencies would be established by a European regulation.
On the other hand a first-past-the-post voting system would also be satisfactory, based on single member constituencies, they too delineated in a European regulation.
In both cases, envisaging that the candidate to the Presidency of the Commission be explicitly indicated (even though not formalized in an act) by the European political parties would be useful for bringing European politics closer to public opinion.
If this change is made it would also be possible to amend the existing jumbled legislative procedure (Art. 294 TEU), tailoring it to the type of European competence involved.
It must be said that this idea arises from the fact that both changes being suggested would entail the European institutions to embrace the federal theory according to which one of the two Chambers making up Parliament is the expression of the Federation and of its people, while the other is the expression of the Member States. Indeed, accepting the reform proposal would entail the final consolidation of the first role that the European Parliament should have with regard to which it is already envisaged that “citizens are directly represented at the level of the Union in the European Parliament” (Art. 10 (2) TUE), while the second role would be played by the European Chamber of Parliaments within which the exponential nature of national interests would emerge even more clearly.
Once this separation of roles is made, as described above, the system would be “ready” to accept a different involvement of the two European “Chambers” (the European Parliament on the one hand, and the European Chamber of Parliaments, on the other), depending on whether the matters at hand are of exclusive EU competence or not (Art. 3 TFUE). In the first case one could only ask for approval of the legislative act by the European Parliament, unless the other Chamber requests (a certain number of States or of Parliamentarians) that the legislative act be put before it. For other competences, the draft legislative act would have to be discussed by both chambers.
If the role of National Parliaments and of the democratic principle are to be truly enhanced, the right of legislative initiative needs to be amended in the sense of expanding it to other bodies.
Actually it must be pointed out that the current system under which the right of legislative initiative is restricted to the Commission, is an (almost) necessary reflection of the European ordinary right to initiative (Art. 294 TFUE), where the Commission is conceived of as a sort of “mediator” that (1) promotes only the draft laws that it deems will receive a good level of consent by the two co-legislators (Parliament and Council) and (2) it tries in various ways, during the procedure, to get the co-legislators to reach a common position. Moreover, apart from this evaluation of it being opportune, the literature has pointed out that the circumstance that the European parliamentarians do not enjoy the right of legislative initiative constitutes an open anomaly within the forms of parliamentarian government.
However, the solution to these issues would be easy in a modified institutional framework in the sense described above, because there would be a true “parliamentarization” of the legislative procedure and, more in general, of the European form of government, that would no longer justify the fact that the right of legislative initiative lies only with the Commission. Indeed, the right of legislative initiative could be extended also to each member of both “Chambers”. It goes without saying that the legislative initiative of the members of the European Chamber of Parliaments might be restricted to the draft laws concerning the legislative competences other than those exclusive to the EU. This shortcoming could however be offset by envisaging that the right of legislative initiative be attributed to the national Parliaments (or individual Chambers to which they belong). On the other hand such powers given to regional legislative assemblies is not new among European forms of government, as for instance in Italy.
In such a reviewed framework for exercising European legislative powers, the current provisions contained in Protocols 1 and 2 could be weakened or even repealed provided that the aims they pursue were guaranteed (in an even more efficient manner) by the parliamentarization of the system.
The reform of the European form of government along the lines suggested here entails also a change in the attribution of executive powers.
Indeed, the proposed changes make it finally possible to operate the principle of the separation of powers also in the order of the European Union. Legislative power would authentically be itself and “self-sufficient”, once it were freed from the attribution of the right to legislative initiative to the Commission and there would also be the space to attribute to the latter the role of “Government” of the European Union the members of which would continue to be assigned upon indication of the national governments and would be politically accountable (only) to the European Parliament. The Commission therefore should be given executive powers authorized in the legislative acts for which besides recourse to the so-called comitology mechanism there could also be the opinions of the Parliamentary Committees of the European Chamber of Parliaments.
[1] See 2012 Annual Report on the relations between European Commission and National Parliaments.
[2] The die is cast by the mentioned Report, that provides data also on the Chambers that are most active in the political dialogue. In particular, “there has been a considerable increase in the opinions forwarded by the Assembly of the Portuguese Republic (from 184 to 227), that account for over 30% of all opinions addressed to the Commission in 2012. The increase also concerns the Senate of the Italian Republic (from 76 to 96 opinions), the German Bundesrat (from 33 to 59), the French Sénat (from 4 to 19), the Austrian Bundesrat (from 3 to 12), the Polish Senat (from 4 to 11), thje Czeq Poslanecká snĕmovna (from 5 to 10), the Irish Houses of the Oireachtas irlandesi (from 1 to 7) and the two Spanish chambers, the Congreso de los Diputados and the Senado (jointly) (from 2 to 7), have increased their participation in the political dialogue with the Commission.
