Constitutional Law of the EU NATIONAL PARLIAMENTS IN THE EUROPEAN UNION: Referees or Spectators? From Rubber-Stampers to Guardians of Subsidiarity 11/11/2014

Constitutional Law of the EU OVERVIEW 1) Background and History 1) Legal Basis and Procedures 1) Practice and Proposals 1) Issues and Dilemmas 1) Conclusions and Perspectives

Constitutional Law of the EU 1. Background and History “Cornerstones of constitutional democracies” Peripheral position in the EU institutional landscape in the beginning Active role in “descending phase” of integration l Link to the European Parliament (originally “dual mandates”)

Constitutional Law of the EU 1. Background and History Problems: National Parliaments (NPs) as “main losers and victims” of EU integration process “De-democratization & de-parliamentarisation” thesis Democratic deficit (accountability and transparency) – input and output legitimacy l Financial crisis in the Euro-zone – back to the center of attention

Constitutional Law of the EU 1. Background and History Chronology: Maastrict Treaty 1992 – Final Act Declaration Amsterdam Treaty 1997 – Protocol Barroso Initiative 2006 l Lisbon Treaty 2009 – turning point: NPs with “one foot in and one foot out” of the EU

Constitutional Law of the EU 2. Legal Basis and Procedures Article 12 TEU: NPs actively contribute to the good functioning of the EU New responsibilities: monitoring principle of subsidiarity participation in the EU evaluation and control mechanisms role in the Treaty Revisions and new accessions EU communication/notification procedures veto power over “passarelle” clause l further inter-parliamentary cooperation, etc.

Constitutional Law of the EU 2. Legal Basis and Procedures Monitoring subsidiarity – Early Warning Mechanism (EWM) procedure: NPs as watchdogs of subsidiarity Legislative acts Area of shared competences 2 votes per NP l Article 5 TEU and Protocol 2 on the Application of Principles of Subsidiarity and Proportionality

Constitutional Law of the EU 2. Legal Basis and Procedures Reminder – principle of subsidiarity: “The Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”.

Constitutional Law of the EU 2. Legal Basis and Procedures

Constitutional Law of the EU 2. Legal Basis and Procedures EWM or “reasoned opinion” procedure (2): Ordinary legislative procedure – 1/2 votes against – “orange card” issued Commission – if decides to maintain proposal, has to justify it l Proposal goes to the Council and European Parliament – possibility to reject in the first reading (55% of votes in Council, simple majority in EP)

Constitutional Law of the EU 2. Legal Basis and Procedures EWM or “reasoned opinion” procedure (3): l NPs (via governments) – legal action before the ECJ for alleged breach of subsidiarity principle – “red card” issued

Constitutional Law of the EU 2. Legal Basis and Procedures Scrutinizing EU policies on national level: European Affairs Committees, sectoral committees, plenary chambers Dominant systems: document-based scrutiny, mandating/procedural scrutiny, informal influence Inter-parliamentary cooperation: COSAC, Conference of Speakers, Conference on CFSP and CDSP, Conference on Economic & Financial Governance, etc.

Constitutional Law of the EU 3. Practice and Proposals Possibility of drastically slowing legislative procedure – increasing number of “veto players” EWM not exercised often in practice – only two “yellow cards” so far (no “orange” or “red” card) NPs appear as a collective entity, “virtual third chamber of the EU legislator”: affected by the processes of Europeanization, transnationalization, and bureaucratization

Constitutional Law of the EU 3. Practice and Proposals Proposals for improvement of the EWM procedure: Consolidation of NPs at EU level – institutionalized forum in Bruxelles Deadline – extended, threshold – lowered Effect – stronger “yellow card”, burden of proof – reversed Timing – “late card” Initiative from NPs – “green card” Procedure – standard formula for reasoned opinions, quality of explanatory memorandums l Scope – include other principles in monitoring procedure

Constitutional Law of the EU 4. Issues and Dilemmas Debate: EWM as legal or political tool? Subsidiarity as legal or political concept? Negative constitutional check – legal review by the NPs – why not ECJ or national Constitutional Courts? If political – what about representatives in the Council? Is EWM proper parliamentary activity?

Constitutional Law of the EU 4. Issues and Dilemmas Subsidiarity as vague concept? “No clear, detailed or widely accepted definition of what constitutes breach of subsidiarity” Different definitions and interpretations in practice Lacks legal substance, not justiciable – ECJ: “articulated but not defined” Exact and substantial definition and strict and homogeneous interpretation necessary l Connection with proportionality and principle of conferral?

Constitutional Law of the EU 4. Issues and Dilemmas Early thoughts on subsidiarity: “Prize of pounds for clear definition of subsidiarity... It only makes sense in a federal approach". (Jacques Delors, ex-president of the Commission) “A rich and prime example of gobbledygook”. (Lord Mackenzie Stuart, former President of the ECJ)

Constitutional Law of the EU 5. Conclusions and Perspectives a) Positive improvements for NPs, but they need to be refined further (both from EU and national level) a) Challenges of internal reorganizations and adaptation of NPs a) Change of paradigm on national level, without losing from sight main responsibilities: controlling governments and direct contact with citizens

Constitutional Law of the EU 5. Conclusions and Perspectives Possible future developments: 1) New supranational body – Committee of NPs (ex ante legal opinion) 1) Advisory or quasi-judicial body – “subsidiarity tribunal” (ex post legal review) 1) Second federalist/upper chamber of the European Parliament – Chamber of NPs

Constitutional Law of the EU List of Sources: 1)Hugo Brady: “The EU’s yellow card comes of age: Subsidiarity unbound?”, November 2013, available at: 2) 1)Charles Grant: “Can national parliaments make the EU more legitimate?”, June 2013, available at: 2) 1)Nicolaus Heinen: “Referees or spectators? National Parliaments and subsidiarity in the VIIIth European Parliament”, September 2014, available at: 2) PROD/PROD /Referees+or+spectators%3F++National+Parliaments+and+subsidiarity+in+the+VIIIth+European+Parliame nt.PDF 1)Theo Jans and Sonia Piedrafita: “The Role of National Parliaments in European Decision-Making”, January 2009, available at: 2) 1)Philipp Kiiver: “The conduct of subsidiarity checks of EU legislative proposals by national parliaments: analysis, observations and practical recommendations”, November 2011, available at: 2) 1)Sonia Piedrafita: “EU Democratic Legitimacy and National Parliaments”, November 2013, available at: 2) 1)Tapio Raunio: “National Parliaments and European Integration - What we know and what we should know?”, January 2009, available at: 2) 1)Pieter De Wilde: “Why the Early Warning Mechanism does not Alleviate the Democratic Deficit?”, June 2012, available at: 2) 1)Discussion Papers for Session 1 of the BTTD 2014: “Legitimizing EU Policymaking: What Role for National Parliaments?”, available at: 2) 1)UK House of Lords - European Union Committee: “9th Report of Session 2013–14 on the Role of National Parliaments in the European Union”, March 2014, available at: 2) 1)IPEX: “The Inter-Parliamentary EU information eXchange platform”, at: 2)