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Secondary, but Still Important Players

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Although the Treaty of Lisbon increases the role of the national parliaments of the Member States, they are not to be at the heart of the EU, but remain secondary players instead. The following gives an overview of the (renewed) functions of a national parliament in the EU:

 

Article 12 TEU:

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, in accordance with Article 70 of the Treaty on the Functioning of the European Union, and through being involved in the political monitoring of Europol and the evaluation of Eurojust’s activities in accordance with Articles 88 and 85 of that Treaty;

(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, in accordance with Article 49 of this Treaty;

(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.

• The Pre-Legislative and Legislative Tasks of National Parliaments:

National parliaments participate in the pre-legislative and legislative processes of the EU, and the Treaty of Lisbon increased the relevant competences of the national parliaments. Basing on the mandate of the constituent treaties, these activities are regulated by Protocol No. 1 on the Role of National Parliaments in the EU, annexed to the constituent treaties. The Protocol on the Role of National Parliaments existed also earlier, but has now been amended.

Participation in the pre-legislative and legislative activities is characterized by the term “input democracy”, meaning that by such participation the member states add value to the EU democratic processes.

What is Protocol No.1 about and what are the major amendments in it?

Concerning output democracy:

-All draft legislative acts will be sent directly to national parliaments, instead of sending those acts to national governments to be forwarded to national Parliaments; (What are the “draft legislative acts”? – Those are proposals from the Commission, initiatives from a group of member states, initiatives from the European Parliament, requests from the ECJ, recommendations from the ECB and requests from the European Investment Bank for the adoption of a legislative act).

-The annual legislative programme, and any policy or legislative planning instruments will be sent to national parliaments – Article 1 of the Protocol: “Commission consultation documents (green and white papers and communications) shall be forwarded directly by the Commission to national parliaments upon publication. The Commission shall also forward the annual legislative programme as well as any other instrument of legislative planning or policy to national parliaments, at the same time to the European Parliament and the Council”.

-All agendas and minutes of the Council meetings will be sent to national parliaments. – Article 5 of the Protocol: “The agendas for and the outcome of meetings of the Council, including the minutes of meetings where the Council is deliberating on draft legislative acts, shall be forwarded directly to national Parliaments, at the same time as to Member States’ governments”.

What do national parliaments do with the draft legislative acts?

When a draft legislative act has been sent to national parliaments, the latter have eight weeks to consider the drafts and make their proposals. This means direct communication with national parliaments.

Article 4 Protocol No. 1 on the Role of National Parliaments in the EU:

An eight-week period shall elapse between a draft legislative act being made available to national Parliaments […] and the date when it is placed on a provisional agenda for the Council for its adoption or for adoption of a position under a legislative procedure. Exceptions shall be possible in cases of urgency, the reasons for which shall be stated in the act or position of the Council. Save in urgent cases for which due reasons have been given, no agreement may be reached on a draft legislative act during those eight weeks. Save in urgent cases for which due reasons have been given, a ten-day period shall elapse between the placing of a draft legislative act on the provisional agenda for the Council and the adoption of a position.

The roots of this Article lie in Communication from the Commission to the European Council – A citizens’ agenda – Delivering results for Europe (COM/2006/0211), where the Commission reasons that in particular, national parliaments must be more closely involved with the development and execution of European policy, because the increased involvement of national parliaments can help make European policies more attuned to diverse circumstances and more effectively implemented. Therefore, the Commission invites national parliaments to react to the documents sent them so as to improve the process of policy formulation.

You may also take a look at the European Convention documents (Working Group IV “National parliaments”) at http://european-convention.eu.int/grptrav.asp?lang=EN The Final Report of the WG IV is available at http://register.consilium.europa.eu/pdf/en/02/cv00/cv00353.en02.pdf The latter document suggests (para. 20) that parliamentary scrutiny reserves should be given a clearer status within the Council’s rules of procedure.  Chalmers and Monti explain at p. 44 of the book European Union Law. Updating Supplement. Cambridge University Press, 2008 that para. 20 means that if a national parliament opposes a measure, a “reserve” should be indicated “on the Council agenda setting this out”.

Is the eight-week period sufficient? – An open question.

• The Role of National Parliaments Supervising the Legislative Process for Compliance with the Principle of Subsidiarity:

This is about the competence of national parliaments to issue reasoned opinions indicating that a proposal does not comply with the principle of subsidiarity. If a certain number of national parliaments asserts such, the EU institutions are bound to withdraw the measure.

Article 69 TFEU:

National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.

Article 3 Protocol No. 1 on the Role of National Parliaments in the EU:

National Parliaments may send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion on whether a draft legislative act complies with the principle of subsidiarity, in accordance with the procedure laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

What is relevant in the Protocol No. 2 on the Application of the Principles of Subsidiarity and Proportionality – According to that Protocol, all draft legislative acts that are sent to national parliaments are justified with regard to the principles of subsidiarity and proportionality, by containing a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. After a draft legislative act has been transmitted to national Parliaments, any national Parliament or any chamber of a national Parliament may, within eight weeks from the date of transmission of a draft legislative act, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. Each national Parliament shall have two votes, shared out on the basis of the national Parliamentary system. In the case of a bicameral Parliamentary system, each of the two chambers shall have one vote. Where reasoned opinions on a draft legislative act’s non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments, the draft must be reviewed. This procedure is named the “yellow card procedure”. Under the ordinary legislative procedure, where reasoned opinions on the non-compliance of a proposal for a legislative act with the principle of subsidiarity represent at least a simple majority of the votes allocated to the national Parliaments, the proposal must be reviewed.  This procedure is named the “orange card procedure”.

• The Role of National Parliaments in the EU Constitution-Making

Article 48 TFEU:

1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.

Ordinary revision procedure

2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The ECB shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

Simplified revision procedures

6. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the TFEU relating to the internal policies and action of the EU.

The European Council may adopt a decision amending all or part of the provisions of Part Three of the TFEU. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the ECB in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

The decision referred to in the second subparagraph shall not increase the competences conferred on the EU in the Treaties.

7. Where the TFEU or Title V of the TEU provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.

Where the TFEU provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.

Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision.

For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.

Article 6 Protocol No. 1 on the Role of National Parliaments in the EU:

When the European Council intends to make use of the first or second subparagraphs of Article 48(7) of the Treaty on European Union, national Parliaments shall be informed of the initiative of the European Council at least six months before any decision is adopted.

• The Role of National Parliaments in EU Enlargement

Article 49 TFEU:

Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. […]

• The Role of National Parliaments in Supervising National Implementation of EU policies

Article 70 TFEU:

The Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the EU policies by Member States’ authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.

Article 71 TFEU:

A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article 240, it shall facilitate coordination of the action of Member States’ competent authorities. Representatives of the EU bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.

• The Role of National Parliaments in the Area of Freedom, Security and Justice

Article 81 TFEU:

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:

(a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases;

(b) the cross-border service of judicial and extrajudicial documents;

(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;

(d) cooperation in the taking of evidence;

(e) effective access to justice;

(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;

(g) the development of alternative methods of dispute settlement;

(h) support for the training of the judiciary and judicial staff.

3. […] The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.

• The Role of National Parliaments in Supervising Eurojust and Europol

Article 85 TFEU:

[…] These regulations shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust’s activities.

Eurojust being responsible for investigations and prosecutions.

Article 88 TFEU:

[…] These regulations shall also lay down the procedures for scrutiny of Europol’s activities by the European Parliament, together with national Parliaments.

Europol being involved in transnational policing of crime.

• The Role of National Parliaments in Interparliamentary Cooperation

Article 9 of Protocol No. 1 on the role of National Parliaments in the EU:

The European Parliament and national Parliaments shall together determine the organisation and promotion of effective and regular interparliamentary cooperation within the Union.

Article 10 Protocol No. 1 on the Role of National Parliaments in the EU allowes a conference of Parliamentary Committees for Union Affairs to submit any contribution it deems appropriate for the attention of the European Parliament, the Council and the Commission. That conference shall in addition promote the exchange of information and best practice between national Parliaments and the European Parliament, including their special committees. It may also organize interparliamentary conferences on specific topics, in particular to debate matters of common foreign and security policy, including common security and defence policy. Contributions from the conference shall not bind national parliaments and shall not prejudge their positions.

You may also take a look at: http://www.cosac.eu/en/cosac , website of COSAC, which is a Conference of the committees of the national parliaments of the EU Member States dealing with European affairs as well as representatives of the European Parliament. COSAC’s bi-annual reports are available at: http://www.cosac.eu/en/documents/biannual, the 11th Bi-Annual Report on EU Practices and Procedures touches:

1. Parliamentary control of Europol and evaluation of Eurojust;

2. The role of the EU parliaments in the promotion of human rights and democracy in the world;

3. Representatives of National Parliaments to the EU;

4. Evaluation of the COSAC Bi-annual Reports.

And the 12th Bi-Annual Report on EU Practices and Procedures touches:

1. Transparency of the parliamentary scrutiny process;

2. Parliamentary scrutiny of the Stockholm Programme.

Chalmers and Monti see one function of COSAC as being a forum for „coordinating and instigating national parliament activities“ (p. 45).

Chalmers and Monti are also of opinion that though such forum activity is welcomed, „it provides further support for the vision that national parliaments are not to be agenda-setters and equals of the other bodies involved in the making of Union law and policy, but are instead simply there as reactive bodies … „No wonder that such a status „creates an unhealthy dialectic and underplays the potential for a more pro-active contribution to the integration project“.

FOLLOW: A link to EurActiv http://www.euractiv.com/en/eu-elections/national-parliaments-eu/article-174732



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