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1 European Parliament Committee on Constitutional Affairs WORKING DOCUMT on the implementation of the Treaty provisions concerning national parliaments Committee on Constitutional Affairs Rapporteur: Paulo Rangel DT\ docx PE v01-00 United in diversity
2 I. Relevance of national parliaments in the EU constitutional framework National parliaments play an essential role in granting and completing the democratic legitimacy of the EU, and in doing so ensuring its pluralism and good constitutional functioning (Article 12 of the Treaty on European Union (TEU)). Notwithstanding their participation in numerous EU joint parliamentary decision-making bodies, control over the national governments by the national parliaments must be exercised (Brok) 1 including through the performance of their European function on the basis of their national constitutions, in particular [...] as members of the European Council and the Council (Bresso and Brok) 2. As acknowledged in Article 10(2) TEU, at EU level, the governments of the Member States are democratically accountable either to their national Parliaments, or to their citizens. The recognition of national legislative branches as active players of the Union and as institutions primarily concerned with controlling the activities of national governments forms the cornerstone of the implementation of the European constitutional provisions concerning national parliaments. These provisions are laid down in the Treaty of Lisbon and Protocol Nos 1 and 2 of the Treaty on the Functioning of the European Union (TFEU). II. Control of the subsidiarity principle The right to scrutinise compliance with the subsidiarity principle on the basis of the so-called early warning system is established in Article 12 TEU, Article 3 of Protocol No 1 TFEU and Articles 6 and 7 of Protocol No 2 TFEU. These provisions have undoubtedly improved relations between the EU and national parliaments. However, national parliaments often criticise their implementation, claiming that such provisions are not easy to put in practice (namely those concerning the orange card procedure), that the yellow card procedure has seen limited usage (and therefore requires improvement and diversification), and that said provisions could be complemented with further interinstitutional cooperation, possibly at an earlier stage of the EU legislative procedure. Prior experience has shown that the early warning system could be made more effective and ensure legal certainty if broadened to encompass both the principle of proportionality and the principle of conferral. The lack of a legal basis for the broadening of the system and the troublesome distinction between these principles and the principle of subsidiarity are every so often used by the Commission to justify its reasoned opinions. In the light of the above, the subsidiarity check should comprise an extension of the stand-still period of eight weeks, possibly within the current Treaty framework. To that end, a notification period could be established to accommodate the time delay between the date on which the draft legislative acts are sent by the Commission and the date on which they are 1 Parliament report of 13 March 2009 on the development of the relations between the European Parliament and national parliaments under the Treaty of Lisbon, //EP//TEXT+REPORT+A DOC+XML+V0//. 2 Parliament report of 9 January 2017 on improving the functioning of the European Union building on the potential of the Lisbon Treaty, //EP//TEXT+REPORT+A DOC+XML+V0//. PE v /6 DT\ docx
3 actually received by national parliaments. Likewise, the security period could be interpreted as only comprising working days or as not including the days on which the EU institutions are closed. In addition, an early, informal period for the examination of draft legislative acts could be introduced. In any case, improving coordination and speeding up the exchange of information between national parliaments would be vital in this regard. a) Green card(s) In 2015, a working group of the Conference of Parliamentary Committees for Union Affairs of Parliaments of the European Union (COSAC) expressed its support for the idea of strengthening political dialogue by introducing a green card system. Since then, several Member States have taken informal initiatives on the procedure, largely in the exercise of their right to present proposals and suggestions to the EU institutions. In 2016, the Verhofstadt report outlined a green card procedure whereby national Parliaments could submit legislative proposals to the Council for its consideration 1. Yet, the green card procedure still lacks a legal basis. Moreover, national parliaments can barely agree on its features: some are in favour of the right to submit new legislative initiatives, some call for a non-binding faculty for requesting the withdrawal of existing legislation, and some are in favour of the right to amend that legislation. One solution would be to introduce a procedure whereby a given majority of national parliaments (a smaller majority than under the orange and yellow card procedures) could send reasoned opinions to the Commission with the aim of positively influencing its powers of legislative initiative, and whereby the Commission could either legislate in line with such opinions or issue a reasoned veto underlining the reasons for not doing so. On the other hand, the conferral of a right to amend or demand the withdrawal of existing legislation should be avoided. In any case, national parliaments can either issue opinions within the framework of the political dialogue, mandate their national governments to demand the formulation of legislative proposals via the Council, or simply call on Parliament to present proposals to the Commission in accordance with Article 225 TFEU. b) Red card? In 2015, the UK s proposal to give national parliaments the right to block draft EU legislation did not reach a consensus among the different political parties at either national or EU level. In February 2016, albeit after considerable changes to its initial proposal, the UK was offered special status enabling Westminster to block draft legislation. This special status has become obsolete since the referendum of June 2016, but the implementation of the red card procedure is still under discussion. The red card would be no exception to the procedures established in the early warning system, in the sense that it might promote reinforcement of the executive rather than the legislative branches owing to the frequent alignment of parliamentary majorities with the 1 Parliament report of 20 December 2016 on possible evolutions of and adjustments to the current institutional set-up of the European Union, //EP//TEXT+REPORT+A DOC+XML+V0//. DT\ docx 3/6 PE v01-00
4 governments of the Member States. What is more, as it stands, it risks blocking the EU decision-making process, rather than improving the quality of EU legislation (Casini) 1. In this context, then, the prospect of the establishment of a red card procedure remains extremely remote at this stage of the European integration process, not only because few national parliaments have shown an interest in this mechanism, but also because its single legal basis, a European Council draft decision of , has been rendered obsolete. III. Right to information In addition to the information provided within the framework of the early warning system, national parliaments have the right to information from the EU institutions in a wide range of matters. They should receive notification of green and white papers, communications, legislative planning instruments and draft legislative acts from the Commission (most of the time as part of the political dialogue), positions and initiatives from the Council, and legislative resolutions from the European Parliament, among other documents (see Articles 12 and 48(7) TEU, Articles 70, 71 and 81(3) TFEU, Articles 1, 2, 5 and 7 of Protocol No 1 TFEU and Article 4 of Protocol No 2 TFEU). The comprehensive range of information rights granted hitherto could be enhanced if national parliaments were given more resources and time to cope with the documents forwarded to them by the EU institutions. Improving the IPEX platform would help to speed up the exchange of information in this regard. This platform consists of a network and digital system to which national legislative branches can upload and share public and confidential information more rapidly, thus enabling them to scrutinise and formulate a position on the documents they receive in a timely manner. IV. Participation in the revision of the Treaties and the call for democratic conventions National parliaments take part in the revision of the Treaties, in accordance with Article 48 of the Treaty of Lisbon. Under the ordinary procedure, if the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining amendments, the President of the European Council shall convene a convention composed of representatives of the national parliaments, among other institutions (Article 48(3) TEU). Under the simplified procedure, if a national parliament makes its opposition known to certain amendments to the Treaties in force, the Council shall refrain from adopting a decision (see passerelle clause in Article 48(7) TEU). The Treaty of Lisbon has not yet been revised. Nevertheless, national legislative branches were recently called upon to take an active part in a series of EU democratic conventions envisaged for These conventions have received the backing of the Commission and 1 Parliament report of 27 March 2014 on relations between the European Parliament and the national parliaments, DOC+XML+V0//. 2 Draft decision of 2 February 2016 of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the United Kingdom within the European Union. PE v /6 DT\ docx
5 should involve all the national parliaments of the Member States. V. Constitutional advantages of the specific role of national parliaments in the EU The Treaty of Lisbon recognises the inherent pluralism of national parliaments. Such diversity is extremely beneficial to the EU, in the sense that the alignment of different political stances across the Member States strengthens and broadens cross-sectional debate at EU level. Nevertheless, there are no Treaty provisions concerning the composition of national parliamentary delegations to the EU institutions. Yet the participation of parliamentary minorities in interinstitutional relations constitutes an advantage that the Union should not disregard. In order to moderate the underrepresentation of parliamentary minorities, national delegations should consist of members from several political parties. Another interesting possibility would be to give them the opportunity to express dissenting points of view, which would then be incorporated into opinions issued by national parliaments either within or outside the framework of the early warning system. Although Member States legal orders and checks and balances are to be fully respected, measures could be taken with the aim of ensuring, or at least promoting, the engagement of parliamentary minorities in EU affairs. VI. Towards full interinstitutional cooperation Cooperation between the EU institutions and national parliaments has improved considerably in the past decade. Firstly, the Barroso initiative has undoubtedly fostered political dialogue between national parliaments and the Commission, as documented annually in reports on their relations. Secondly, any constitutional jealousy that may have existed between the European Parliament and national parliaments has faded post-lisbon (see Articles 9 and 10 of Protocol No 1 TFEU, on determining the organisation and promotion of effective and regular interparliamentary cooperation within the Union). While this cooperation is closely linked to dialogue between the national legislative branches themselves, there is still room for improvement. To begin with, efforts should be made to simplify the current framework of relations between the EU and national parliaments: the Conference of Speakers of EU Parliaments, COSAC, the Interparliamentary Conference on Stability, Economic Coordination and Governance in the EU, the Joint Parliamentary Scrutiny Group on Europol, the interparliamentary committee meetings and the joint parliamentary meetings are just some of the bodies, entities and procedures concerned. The development of a committee-based approach would be extremely worthwhile. Better interinstitutional cooperation could also be achieved by addressing the lack of correspondence between the political calendars at national and EU level. Nowadays, in fact, the European Semester agenda is a source of tension and results in premature or behindhand Member State discussions on fiscal policies, structural reforms and the prevention of macroeconomic imbalances. Henceforth, measures could be taken to align the European Semester with national parliament agendas, with a view to coordinated economic policies running side by side and the harmonisation of national parliament and EU institution agendas, while considering the specific rules of procedure of each legislative branch. DT\ docx 5/6 PE v01-00
6 The same applies to the implementation of the Treaty provisions concerning the role of national parliaments in the areas of freedom, security and justice (see Articles 70, 88 and 85 TFEU). At a time when these matters are all the more complex, the EU should call on one of its major sources of democratic legitimacy, possibly though an active role in the monitoring of a future European Defence Union. Finally, national legislative branches could be encouraged to create, on their own initiative, a European week; that is to say, an annual or semi-annual week in which specific yet variable subjects could be included on their agendas and discussed with Commissioners and MEPs from different Member States. PE v /6 DT\ docx
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