State of the Union: relations with national Parliaments

Visits to national parliaments is the next section in the State of the Union 2017 brochure (108 pages), consisting of a one page presentation of how the 657 visits to national parliaments since the beginning of the Commission’s mandate on 1 November 2014 have been distributed across the EU member states (page 95).

This is only the tip of the iceberg. We can go to the EU treaties and annual reports for insights into the relations between the European Commission and national parliaments, including the principles of subsidiarity and proportionality, not forgetting the cost of non-Europe.

Role of national parliaments   

We can go to the consolidated treaties (2016; link to all language versions; here in English) for Protocol (No 1) on the role of national parliaments in the European Union (page 203), annexed to the Treaty on European Union (TEU), to the Treaty on the Functioning of the European Union (TFEU) and to the Treaty establishing the European Atomic Energy Community (Euratom Treaty).

The purpose is to encourage greater involvement of national parliaments in the activities of the European Union and to enhance their ability to express their views on draft legislative acts of the Union as well as on other matters which may be of particular interest to them.

In practice, national parliaments shall receive plans and proposals directly, at the same time as the European Parliament and the Council of the European Union. A national parliament can 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. The national parliaments have eight weeks to react.  

Just in passing, Protocol (No 1) also contains provisions on interparliamentary cooperation between the European Parliament and national parliaments. There is a reference to the conference of Parliamentary Committees for Union Affairs COSAC.

Subsidiarity and proportionality

Article 5 TEU lays down the principles of attributed powers (conferral), subsidiarity and proportionality (page 18):

Article 5

(ex Article 5 TEC)

1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, 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.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

Protocol No 2 on the application of the principles of subsidiarity and proportionality establishes the conditions for the application of the principles of subsidiarity and proportionality, and outlines the system for monitoring the application of those principles (page 206).

Annual reports

Those who want to look at the practical side can turn to the annual reports, which illustrate some of the most hotly debated EU legislative issues in recent times:

Annual report 2016 on relations between the European Commission and national parliaments; Brussels, 30.6.2017 COM(2017) 601 final

Annexes to the Annual report 2016 on relations between the European Commission and national parliaments; Brussels, 30.6.2017 COM(2017) 601 final ANNEXES 1 to 3  

The annexes offer us the number of opinions and reasoned opinions from each national parliamentary chamber; the Commission documents causing these opinions (with the communication on the Commission Work Programme CWP 2016 on top), and; the number of opinions received per lead Commission service (with DG Migration and Home Affairs on top).

Mandatory according to Article 9 of Protocol (No 2), the more specific sister publication on subsidiarity and proportionality was published at the same time:

Annual Report 2016 on Subsidiarity and Proportionality; Brussels, 30.6.2017 COM(2017) 600 final

The Commission refers to its reinforced Better Regulation agenda (page 2):

...which includes strengthened guidance on how to assess subsidiarity and proportionality in the policymaking process and new opportunities for citizens and stakeholders to provide feedback. The Commission is also pursuing its practice of evaluating existing policy frameworks, before coming forward with legislative revisions. These evaluations include assessments of whether existing policy measures are still 'fit for purpose' and to what extent they comply with the principles of subsidiarity and proportionality. Better regulation principles and instruments, including subsidiarity and proportionality assessments, are applied at various stages of the decision-making process, taking account of relevant analysis and input provided by stakeholders.

The report deals with principles and practical experiences relating to subsidiarity analysis, proportionality analysis, ex ante impact assessments, as well as ex post evaluations and fitness checks.

The number of reasoned opinions from national parliaments rose dramatically (page 7):

In 2016, the Commission received 65 reasoned opinions from national Parliaments on the principle of subsidiarity. This was 713% more than the eight reasoned opinions received in 2015. The number of reasoned opinions received in 2016 is the third highest in a calendar year since the subsidiarity control mechanism was introduced by the Lisbon Treaty in 2009 (after 84 in 2012 and 70 in 2013). The reasoned opinions received in 2016 also accounted for a higher proportion (10.5%) of the total number of opinions received by the Commission in that year under the political dialogue (620). It should be noted that the total number of opinions submitted by national Parliaments under the political dialogue also increased significantly in 2016.

The 65 reasoned opinions received in 2016 included 38 opinions related to four Commission proposals. The proposal giving rise to most reasoned opinions was the proposal for a review of the Directive on the posting of workers, which generated 14 reasoned opinions, thereby triggering the procedure under Article 7(2) of Protocol No 2 to the Treaties (the so-called "yellow card" procedure). The proposal for a review of the Dublin Regulation received eight reasoned opinions and the two proposals establishing the Common Consolidated Corporate Tax Base received eight reasoned opinions. Other proposals received between one and four reasoned opinions. The cases on which the Commission received the highest number of reasoned opinions are described in more detail in Chapter 3.

The report explains the role of the European Parliament and the Council with regard to the application of the principles of subsidiarity and proportionality (from page 8). However, we should not forget the work of the European Parliamentary Research Service EPRS on the European added value of new EU legislation and the cost of the absence of action at EU level (cost of non-Europe). On page 9:

In 2016, the European Parliament produced 36 Initial Appraisals, one Impact Assessment of substantive parliamentary amendments and 14 ex-post European Impact Assessments. In addition, seven reports on the cost of non-Europe and four European Added Value Assessments were completed. The European Parliamentary Research Service also scrutinises the implementation and effectiveness of existing EU legislation whenever the European Commission announces in its annual work programme that this legislation will be amended. In 2016, some 28 such "Implementation Appraisals" were produced.

The role of the Committee of the Regions and regional legislative assemblies is described from page 10, with the Court of Justice of the European Union (CJEU) from page 12. The key Commission proposals leading to expressions of concerns were discussed from page 13 (the posting of workers; the Dublin Regulation review; the Common Consolidated Corporate Tax Base).   

The annex lists the Commission documents on which the Commission received reasoned opinions regarding compliance with the subsidiarity principle from national Parliaments in 2016:

Annex to the Annual Report 2016 on Subsidiarity and Proportionality; Brussels, 30.6.2017 COM(2017) 600 final ANNEX 1

State of the Union 2017

The European Commission’s State of the Union 2017 web page is still only in English and it has received no visible updates since yesterday morning.

Ralf Grahn

EU TFEU: Consistency

Today we start to look at a new Title in the Treaty of Lisbon, with Provisions having general application, meaning that they apply across the Treaty on the Functioning of the European Union (TFEU).

Out of academic interest, we run a genetics test on a newborn provision.


***

In the Treaty of Lisbon (ToL) the Treaty establishing the European Community (TEC), under its new name, the Treaty on the Functioning of the European Union (TFEU), Part One of the treaty introduces a Title II Provisions having general application.

At the beginning of Title II, the intergovernmental conference (IGC 2007) inserted a new Article 2f into the Treaty of Lisbon, under (OJ 17.12.2007 C 306/47):

Article 2f TFEU (ToL), to be renumbered Article 7 TFEU

The Union shall ensure consistency between its policies and activities, taking all of its objectives
into account and in accordance with the principle of conferral of powers.

***

When we turn to the corresponding Article III-115 in the Treaty establishing a Constitution for Europe, we notice that it stands at the beginning of Part III The policies and functioning of the Union and its Title I Provisions of general application.

We have often looked at the similarities between corresponding Articles in the Lisbon Treaty, the Constitution and the draft Constitution, but here we have an opportunity to notice how much in common the different versions have structurally. Part III on the … functioning of the Union reminds us of the Treaty on the Functioning of the European Union.

And the Title level headings are almost identical between the Lisbon Treaty and the Constitution.

The likeness does not end there, as you see if you read Article III-115 of the Constitutional Treaty and notice only a small change of style (OJ 16.12.2004 C 310/55):

PART III
THE POLICIES AND FUNCTIONING OF THE UNION

TITLE I
PROVISIONS OF GENERAL APPLICATION

Article III-115

The Union shall ensure consistency between the policies and activities referred to in this Part, taking all of its objectives into account and in accordance with the principle of conferral of powers.

***

Next, our Time Machine takes us to the draft Treaty establishing a Constitution for Europe. We look at both the structure and the wording (OJ 18.7.2003 C 169/29):

PART III
THE POLICIES AND FUNCTIONING OF THE UNION

TITLE I
CLAUSES OF GENERAL APPLICATION

Article III-1

The Union shall ensure consistency between the different policies and activities referred to in this Part, taking all of the Union's objectives into account and in accordance with the principle of conferring of powers.

***

As you can see, there is not much between the three versions, and since the provision is new, it leads to the conclusion that after a few years of stagnation we might actually be allowed to benefit from the work of the European Convention.

***

The origins of Article 2f TFEU (ToL) have been attributed differently. The UK Foreign and Commonwealth Office (FCO) rounds up the widest circle of suspects, four different Articles:

“Draws on Articles 1 and 3 TEU, and Articles 5 and 7 TEC.”

The number of paternity candidates does not matter that much, although it is intriguing how a short Article like 2f TFEU can draw on such an extensive gene pool, but each of them gives us an opportunity to get acquainted with the TEU and TEC, the treaties in force. For the latest consolidated version of the current treaties we go to OJ 29.12.2006 C 321 E/1.

So, out of academic interest, let us see what Article 1 TEU has to offer:

Article 1 TEU

By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN
UNION, hereinafter called ‘the Union’.

This Treaty marks a new stage in the process of creating an ever closer union among the peoples
of Europe, in which decisions are taken as openly as possible and as closely as possible to the
citizen.

The Union shall be founded on the European Communities, supplemented by the policies and
forms of cooperation established by this Treaty. Its task shall be to organise, in a manner
demonstrating consistency and solidarity, relations between the Member States and between their
peoples.

***

Article 1 TEU at least gave us ‘policies’ and ’consistency’, and Article 3 TEU mentions ‘activies’ and ‘consistency’ (thrice):

Article 3 TEU

The Union shall be served by a single institutional framework which shall ensure the consistency
and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.

The Union shall in particular ensure the consistency of its external activities as a whole in the
context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.

***

Article 5 TEC seems to contribute with ’powers conferred’ and ‘objectives’:

Article 5 TEC

The Community shall act within the limits of the powers conferred upon it by this Treaty and of
the objectives assigned to it therein.

In areas which do not fall within its exclusive competence, the Community shall take action, in
accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

Any action by the Community shall not go beyond what is necessary to achieve the objectives of
this Treaty.

***

Beaming with pride, Article 7 TEC lays claim to the striking family resemblance with its ‘powers conferred’:

Article 7 TEC

1. The tasks entrusted to the Community shall be carried out by the following institutions:
— a EUROPEAN PARLIAMENT,
— a COUNCIL,
— a COMMISSION,
— a COURT OF JUSTICE,
— a COURT OF AUDITORS.

Each institution shall act within the limits of the powers conferred upon it by this Treaty.

2. The Council and the Commission shall be assisted by an Economic and Social Committee
and a Committee of the Regions acting in an advisory capacity.

***

We do not know if Article 2f TFEU is going to survive the perilous times of infant mortality that EU treaties are prone to before ratification, but we know that newborn has inherited a number of its noble traits from its elders.


Ralf Grahn


Source:

Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp