Photo by Olga Posaškova, Office of the Seimas

 

Role of national Parliaments in the European Union

The Treaty of Lisbon, amending the Treaty on European Union and the Treaty establishing the European Community (in force since 1 December 2009), which was signed in 2007, lays down for the first time the provision stipulating that national Parliaments shall contribute actively to the good functioning of the Union and sets out the ways of achieving this.

In 1989, the Conference of Parliamentary Committees for Union Affairs (or COSAC, a French acronym for Conférence des organes spécialisés dans les affaires communautaires) was established.

In 1992, the Treaty on European Union (Maastricht Treaty) was signed to which two declarations were attached: the Declaration on the role of national Parliaments in the European Union and the Declaration on the Conference of the Parliaments.

In 1997, the Treaty of Amsterdam was signed with two protocols annexed thereto: the Protocol on the role of national Parliaments in the European Union and the Protocol on the application of the principles of subsidiarity and proportionality.

In 2001, the European Council meeting in Laeken (Belgium) adopted a declaration calling for the Convention on the Future of Europe to be convened; the Convention was charged with the task of analysing thoroughly the issues related to institutional reform of the EU (as well as to the role of national Parliaments in the EU) and drafting a European Constitutional Treaty.

 The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed on 13 December 2007, includes for the first time a separate article concerning the role of national Parliaments. The Protocol on the role of national Parliaments in the European Union and the Protocol on the application of the principles of subsidiarity and proportionality lent legitimacy to a new form of involvement of national Parliaments in dealing with EU matters.

 

Specific features of the legislative process of the European Union

The key difference between the EU law-making and national legal systems lies in the fact that secondary legislation binding on all EU Member States are adopted by the Council of the EU (where, in accordance with certain rules, national positions are represented by Member State governments) together with the European Parliament (which has the mandate of all EU citizens rather than the mandate of citizens of a specific Member State) and not by national Parliaments. Legal acts under the ordinary legislative procedure are adopted by qualified majority in the Council.

The European Commission is yet another supranational EU institution that has the right, with certain reservations, to draft legislation. Therefore, national Parliaments, as the main national legislative bodies, formally are not engaged in direct participation in EU law-making. In many cases, national Parliaments have the responsibility for the implementation of EU legislation adopted (when their implementation requires adoption of laws). This scheme has so far remained little changed since the establishment of the European Community.

However, certain shortcomings of the scheme emerged over the course of several decades of European integration. With the ratification of European Community and European Union treaties, which extended the powers of supranational institutions, national Parliaments of Member States respectively narrowed their own powers. Against the background of greater integration, these particularities of the EU decision-making process were increasingly criticized and commonly referred to as the democratic deficit within the European Union.

The question of the role of national parliaments was not in practice part of the EU agenda for over the 30 years. In the early stages of the European Community, integration mainly involved issues related to the liberalisation of trade and some other economic activities, referred to as the common market. These areas (of course, not to be treated as absolute) mainly fell within the sphere of competence of the governments. Therefore, national Parliaments used to leave the resolution of such matters in the hands of their respective governments.

 

Deepening of European integration and the issue of the role of national Parliaments

The question of the role of national Parliaments came to the fore after the entry into force of the Single European Act (1987), which clearly reinforced the idea of integration. The European Single Act extended the scope of qualified majority voting. The Act introduced qualified majority voting for the internal market programme and, to that end, in the adoption of measures for harmonisation of national legislation in new areas, particularly with regard to economic and social cohesion, science, research and environment. A rather moderate participation of national Parliaments in the EU’s legislative process was seen as a gap in democratic decision-making. Work continued with a view to finding ways to close the gap and preserve the decision-making efficiency of the Community (Union).

The establishment of the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (or COSAC, a French acronym for Conférence des organes spécialisés dans les affaires communautaires) in 1989 was one of the first concrete steps in this direction. Despite the absence of any formal rights in the EU legislative process, COSAC was of great importance because European Affairs Committees of national Parliaments started organising regular meetings to discuss the matters pertaining to EU law-making and the role of national Parliaments thereto.

The Treaty on European Union signed in Maastricht in 1992 marks “a new stage in the process of creating an ever closer union among the peoples of Europe”. First and foremost, it opened two totally new fields of integration – the Common Foreign and Security Policy (CFSP) and cooperation in the field of justice and home affairs (JHI). These two areas are particularly sensitive to Member States. Second, the Treaty set ambitious objectives for economic and monetary union, the implementation of which is crowned by the creation of a single currency. Third, regulation of even more matters went to the supranational level, i.e., the scope of matters to be decided by qualified majority in the Council broadened. Fourth, alongside other ways of decision-making, the Maastricht Treaty introduced a new co-decision procedure extending the rights of the European Parliament. 

The Treaty of Maastricht establishing the European Union widened the scope of integration by conferring more competences and powers to the institutions of the Union but at the same time it declared that “decisions are taken as openly as possible and as closely as possible to the citizens“. The Maastricht Treaty entrenched the principle of subsidiarity as an offset to slow down drifting of the Union towards federalism and to prevent doubts as to the political legitimacy of Union’s decisions taken. Moreover, the Treaty aimed at providing for political safeguards in the form of two annexed declarations relating to national Parliaments. Declaration 13 on the Role of National Parliaments in the European Union stipulates that:

“The Conference considers that it is important to encourage greater involvement of national parliaments in the activities of the European Union.

To this end, the exchange of information between national parliaments and the European Parliament should be stepped up. In this context, the governments of the Member States will ensure, inter alia, that national parliaments receive Commission proposals for legislation in good time for information or possible examination.

Similarly, the Conference considers that it is important for contacts between the national parliaments and the European Parliament to be stepped up, in particular through the granting of appropriate reciprocal facilities and regular meetings between members of Parliament interested in the same issue.“

Declaration 14 on the Conference of the Parliaments provides that:

“The Conference invites the European Parliament and the national parliaments to meet as necessary as a Conference of the Parliaments (or ‘assises‘).

The Conference of the Parliaments will be consulted on the main features of the European Union, without prejudice to the powers of the European Parliament and the rights of the national parliaments. The President of the European Council and the President of the Commission will report to each session of the Conference of the Parliaments on the state of the Union.”

 

Protocols on the role of national Parliaments in the European Union and on the application of the principles of subsidiarity and proportionality

The declarations annexed to the Treaty of Maastricht recognised for the first time the importance of national Parliaments in European integration. In that stage of the evolution of EU law, the role of national Parliaments was not related to their direct involvement in EU law-making or the monitoring of compliance with the subsidiarity principle.

The foundations for that were laid by adopting the following Protocols annexed to the Treaty of Amsterdam of 1997:

Protocol on the role of national Parliaments in the European Union;

Protocol on the application of the principles of subsidiarity and proportionality.

The Protocol on the role of national Parliaments in the European Union defined the role of national Parliaments in adopting EU decisions and greatly affected national parliamentary practices. The Protocol specifies the cope of information provided to national Parliaments and sets the minimum timeframe for parliamentary scrutiny of EU legislation and the institutional framework for inter-parliamentary cooperation. The Protocol has become a genuine legal basis enabling the involvement of national Parliaments into consideration of EU matters. Moreover, the Protocol acknowledged the importance of inter-parliamentary cooperation and turned COSAC into an institutionalised form of involvement of national Parliaments into EU matters. The Protocol already specifically provides for the possibility for national Parliaments to consider, at COSAC, the practical application of the subsidiarity principle in EU legislation. However, it does not provide for any possibilities to implement parliamentary scrutiny in the field of CFSP and JHA. Although within the COSAC framework national Parliaments are provided with the possibility to consider Commission’s proposals in terms of subsidiarity, nothing is said about the conclusions of such considerations and about the duty of the Commission to take account of the opinion of national Parliaments.

The Protocol on the application of the principles of subsidiarity and proportionality outlines in more detail the application of the principles and establishes a permanent mechanism for monitoring and evaluation of their application. However, it was the EU institutions rather than national Parliaments that were entrusted with the monitoring of compliance with the principle of subsidiarity.

The European Council meeting in Nice on 7–10 December 2000 adopted a declaration announcing about the wide-ranging debate on the Future of Europe and identifying key questions that need to be addressed (including the role of national Parliaments in the EU in future). The Treaty of Nice signed on 26 February 2001 was intended for making legal preparations for the future enlargement of the EU. Annexed to the Treaty are the same protocols on the role of national parliaments and on the application of the principles of subsidiarity and proportionality. On 15 December 2001, the European Council meeting in Laeken (Belgium) adopted a declaration calling for the Convention on the Future of Europe to be convened and charged the Convention with the task of analysing thoroughly the issues related to institutional reform of the EU and drafting a European Constitutional Treaty. The role of national Parliaments was among the key issues at the Convention, which worked from February 2002 until July 2003. The Convention submitted the final text of the draft Treaty establishing a Constitution for Europe on 18 July 2003 strengthening the role of national Parliaments and entrusting them with the control of the application of the subsidiarity principle. Moreover, the protocols on the role of national parliaments and on the application of the principles of subsidiarity and proportionality annexed to the Treaty were substantively amended.

The Treaty establishing a Constitution for Europe never entered into force as it was rejected by voters in France and the Netherlands. Nevertheless, the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community was signed in Lisbon on 13 December 2007 (and entered into force on 1 December 2009) with the aim at further reforming the EU. In fact, the Treaty of Lisbon preserved all provisions of the Treaty establishing a Constitution for Europe related to the role of national Parliaments in the European architecture.

 

Role of national Parliaments in the EU as defined by the Treaty of Lisbon

The Treaty of Lisbon, for the first time, introduced a separate article covering the role of national Parliaments in the EU rather than a protocol.

According to the article (Article 12 of the Treaty on European Union) national Parliaments contribute actively to the good functioning of the Union:

a.  through being informed by the institutions of the Union and having draft legislative acts of the Union forwarded to them in accordance with the Protocol on the role of national Parliaments in the European Union;

b.  by seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for in the Protocol on the application of the principles of subsidiarity and proportionality;

c.   by taking part, within the framework of the area of freedom, security and justice, in the evaluation mechanisms for the implementation of the Union policies in that area and through being involved in the political monitoring of Europol and the evaluation of Eurojust’s activities;

d.  by taking part in the revision procedures of the Treaties, in accordance with Article 48 of this Treaty;

e.  by being notified of applications for accession to the Union;

f.   by taking part in the inter-parliamentary cooperation between national Parliaments and with the European Parliament, in accordance with the Protocol on the role of national Parliaments in the European Union.

Moreover, the Treaty of Lisbon specified in more detail the provisions of the Protocols relating to the role of national Parliaments and on the applications of the principles of subsidiarity and proportionality. The latter Protocol provides for two procedures, which, for the sake of clarity, are often referred to as the “yellow card” and the “orange card”.

Where reasoned opinions on non-compliance of a draft legislative act with the principle of subsidiarity represent at least one third of all national Parliaments' chambers [1] (a quarter in the case of a draft legislative act submitted in the area of freedom, security and justice), the draft must then be reviewed by the originating institution, which may decide to maintain, amend or withdraw the draft. This is called the “yellow card" procedure.

Where more than one-half of all national parliaments' chambers with a vote issue a reasoned opinion, EU legislators, i.e. the European Parliament and the Council, will have to consider whether the legislative proposal is compatible with the principle of subsidiarity, taking particular account of the reasons expressed and shared by the majority of national Parliaments. This is referred to as the “orange card” procedure.

Furthermore, the Treaty of Lisbon introduced a completely new provision (Article 81 of the Treaty on Functioning of the EU) under which any national Parliament can, within six months of notification, veto the legislative proposal from the Commission determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure (i.e. to adopt national legislation approximated with the EU legislation concerning judicial cooperation in family matters). In the absence of opposition within six months, the Council may unanimously adopt the decision. There is yet one more novelty introduced in the Protocol on the application of the principles of subsidiarity and proportionality (Article 8) which gives a national Parliament the right to bring an action against a legislative act (or its part) before the European Court of Justice on grounds of infringement of the principle of subsidiarity.

[1] Under the voting scheme introduced by the Protocol, each national Parliament has two votes; in the case of a bicameral Parliamentary system, each of the two chambers has one vote.

 

Forms of inter-parliamentary cooperation

The Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (or COSAC, a French acronym for Conférence des organes spécialisés dans les affaires communautaires) is a forum where European Affairs Committees hold regular meetings to discuss key legislative matters of the EU and to exchange views on strategic EU issues and the role of national Parliaments in EU decision-making.

Interparliamentary Conference for the Common Foreign and Security Policy and the Common Security and Defence Policy is organised twice a year by the Parliament holding the Presidency of the Council of the EU. The Conference focuses on the issues pertaining to the Common Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP) of the EU.

The Interparliamentary Conference on Stability, Economic Coordination and Governance in the EU was established pursuant to Article 13 of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG). The Conference provides a framework for debate in the area of budgetary policy in the EU and other matters pertaining to the Economic and Monetary Union covered by the TSCG.

The Conference of Speakers of EU Parliaments gathers together Speakers of the Parliaments of the EU Member States and the President of the European Parliament. The purpose of the Conference is to exchange opinions, information and experiences on topics related to the role of parliaments and the organisation of parliamentary functions, as well to promote research activities and common action.

Meetings of the Secretaries General of European Union Parliaments are attended by the heads of administrations (Secretaries General) of national Parliaments of EU Member States and of the European Parliament. They traditionally discuss the preparation for the Conference of the Speakers of EU Parliaments and other matters related to cooperation of administrations of national Parliaments.

The Interparliamentary EU Information Exchange (IPEX) facilitates inter-parliamentary exchange of information among national Parliaments regarding the EU issues. IPEX contains working documents of national Parliaments debated within the framework of preliminary scrutiny of the EU legislative process and EU-related information.

Representatives of national Parliaments in the EU are responsible for ensuring the exchange of information between their respective Parliaments and the European Parliament and other EU institutions, maintaining contacts with the COSAC Secretariat and participating in the coordination on a practical level.

The European Centre for Parliamentary Research and Documentation (ECPRD) promotes the exchange of information, experience and best practice between parliamentary services, particularly in the fields of information, research and documentation. The ECPRD includes all parliaments within the Council of Europe.