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

Lisbon Treaty ratifications

Take a stroll down the Wikipedia article on the Treaty of Lisbon until you reach the updated table of ratifications. (Yes, formal German ratification is has been noted.)

By now, the national parliaments in 26 member states have approved the Lisbon Treaty, and they are all hoping for Ireland to join them after Friday’s referendum.

Given the varying domestic political scenes, it is almost a miracle that any new treaty can reach this far, but one striking feature is how large the majorities have been in most national parliaments.

Would they vote for the amending treaty without good reason?


Ralf Grahn

European Union: Council meetings (VI) National parliaments

The complexity of the European Union appears, when devising the (provisional) agendas of the Council meetings. Not only the national governments, but the national parliaments, require their periods of grace before certain items can be placed on the agenda.

Legislative procedures are time-consuming.


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Protocol on national parliaments


Protocol (No 9) on the role of national parliaments in the European Union lays down a system of scrutiny for the national parliaments (excerpt):


I. Information for national parliaments of Member States

1. All Commission consultation documents (green and white papers and communications) shall be promptly forwarded to national parliaments of the Member States.

2. Commission proposals for legislation as defined by the Council in accordance with Article 207(3) of the Treaty establishing the European Community, shall be made available in good time so that the government of each Member State may ensure that its own national parliament receives them as appropriate.

3. A six-week period shall elapse between a legislative proposal or a proposal for a measure to be adopted under Title VI of the Treaty on European Union being made available in all languages to the European Parliament and the Council by the Commission and the date when it is placed on a Council agenda for decision either for the adoption of an act or for adoption of a common position pursuant to Article 251 or 252 of the Treaty establishing the European Community, subject to exceptions on grounds of urgency, the reasons for which shall be stated in the act or common position.


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In other words, the national parliaments dispose of a six week period to make up their mind about a legislative proposal or a proposal relating to police and judicial cooperation in criminal matters.

Under the Lisbon Treaty, this period would be extended to eight weeks (Protocol No 1; Article 4).


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Council’s Rules of Procedure


The Council agenda has to observe this period. Only a unanimous decision on the grounds of urgency allows for an exception to be made:



Article 3(3) Council’s Rules of Procedure


3. Items relating to the adoption of an act or a common position on a legislative proposal or a proposal for a measure to be adopted under Title VI of the Treaty on European Union (hereinafter referred to as the EU Treaty) shall not be placed on the provisional agenda for a decision until the six-week period provided for in point 3 of the Protocol on the role of national parliaments in the European Union has elapsed.

The Council may unanimously derogate from the six-week period where the entry of an item is subject to the exception on grounds of urgency provided for in point 3 of that Protocol.




Ralf Grahn

EU Lisbon Treaty: National parliaments (Sweden)

According to the Article 5 of the Treaty on European Union (TEU), as amended by the Treaty of Lisbon, the limits of EU competences are governed by the principle of conferral. The use of EU competences is governed by the principles of subsidiarity and proportionality.

Two protocols are relevant for the national parliaments:

• Protocol (No 1) on the role of national parliaments in the European Union; and
• Protocol (No 2) on the application of the principles of subsidiarity and proportionality.


According to Article 12 TEU, national parliaments contribute actively to the good functioning of the union (OJEU 9.5.2008 C 115):


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.



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Preparation for the Lisbon Treaty

The national parliaments in 26 EU member states have approved the Treaty of Lisbon. Politically Ireland has secured that every member state keeps a member of the Commission, if the Lisbon Treaty enters into force, as well as assurances on sensitive issues.

On the basis of this “better deal”, the Irish government will propose a new referendum on the Lisbon Treaty, when the details of the guarantees have been finalised at the European Council 18 to 19 June 2009.

This blog has called for the EU institutions to prepare the needed acts and decisions for the entry into force of the Lisbon Treaty in an open, transparent and interactive manner. Only the European Parliament has acted openly, while the Council and the Commission have either failed to carry on preparatory work or they have kept EU citizens in the dark.

But the possible entry into force of the Lisbon Treaty has implications for national parliaments, as well.

If the Irish vote Yes in the second referendum and the other loose ends are tied up (formal ratification by the Czech Republic, Poland and Germany), the reform treaty enters into force quickly, at the beginning of the month following the deposition of the last ratification instrument. (In addition, approval or rejection in the Åland Islands affects the geographical scope of the reform treaty.)

At the national level, too, the needed preparatory measures have to be prepared in advance.


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Sweden

The Riksdag Board of the Swedish Parliament (riksdagsstyrelsen) has produced a legislative proposal on the application of the Treaty of Lisbon in the Swedish Parliament (Riksdag): Tillämpningen av Lissabonfördraget i riksdagen 2008/09:URF2.



All the consequences of the Lisbon Treaty are studied, including the anticipated increase in the work-load of the Parliament, and the 124 page study contains proposed amendments to the Riksdag Act (riksdagsordningen).

Without going into details here, the proposals are interesting for national parliaments in other EU member states and for researchers.



Ralf Grahn

European Parliament and national parliaments

AFCO, the Committee on Constitutional Affairs of the European Parliament, discusses a draft report by Elmar Brok on Monday evening 9 March 2009.

The draft Report on the development of the relations between the European Parliament and national parliaments under the Treaty of Lisbon, dated 26 January 2009, is available here:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-415.140+02+DOC+PDF+V0//EN&language=EN


The procedure to follow for this own-initiative report is 2008/2120(INI).

Rapporteur Elmar Brok bases his approach on twin tracks of parliamentarisation of the European Union, involving the broadening of the European Parliament’s powers vis-à-vis all the Union’s decisions and the strengthening of the powers of the national parliaments vis-à-vis their respective governments.

The Report presents three groups of rights of the national parliaments under the Lisbon Treaty: rights to be informed, rights to actively participate and rights to object.

The principles of subsidiarity and proportionality are among the key interests of national parliaments (as enshrined in Protocol No. 2 annexed to the consolidated Treaty of Lisbon; OJEU 9.5.2008 C 115/206).

The draft Report contains a number of practical proposals to develop interparliamentary cooperation, including at the level of specialised committees, without encroaching on parliaments' decision-making powers.



Ralf Grahn

Statewatch alert: EU Council curbing free movement?

A press release by Statewatch sounds the alarm concerning the very principles the European Community (European Union) is built on. Rolling back free movement of persons endangers a fundamental principle and trying to forestall more open legislative procedures by intergovernmental fiat is a grave procedural choice.

I give you the text of the Statewatch press release with including links for further study:

Press release, 27 November 2008JUSTICE AND HOME AFFAIRS COUNCIL, Brussels, 27 November:Restriction on the EU freedom of movement of citizens who have been convicted of serious crime or for "repeated offences" (which may be "low level")

Ministers are discussing the adoption of Council Conclusions: Free movement of persons: abuses and substantive problems – Draft Council conclusions on abuses and misuses of the right to free movement of persons (16151/1/08, 26 November 2008, pdf):

http://www.statewatch.org/news/2008/nov/eu-restrictions-free-movement-conclusions-nov-08.pdf

These say that: "Only those exercising their rights in the spirit of the Treaty should benefit from freedom of movement." While referring to third country nationals the proposals would apply to EU citizens as well and allow Member States to deny entry to those who:"break the law in a sufficiently serious manner by committing serious and repeated offences

"The scope of "repeated offences" is undefined and could apply, for example, to protestors who take part in cross-border demonstrations.

These Conclusions are based on a proposal put forward by the UK: Statewatch Analysis: The UK proposals on EU free movement law: an attack on the rule of law and EU fundamental freedoms by Professor Steve Peers - University of Essex (pdf):

http://www.statewatch.org/analyses/no-72-eu-attack-on-fundamental-rights-08.pdf

The draft conclusions constitute an attack on the rule of law and the fundamental freedom of EU citizens and their family members to move freely within the Community. They indicate an intention to:

- ignore a recent important ruling of the Court of Justice as well as many prior rulings of the Court;

- attempt to dictate to the Court how to interpret EC legislation;

- amend or re-interpret EC legislation at the dictat of interior ministries, without applying any form of legislative process; and

- dictate to the Commission how to perform its independent task as guardian of EC law.

The UK proposal includes considering: "the cumulative damage caused by continuous low-level offending can amount to a sufficiently serious threat to public policy"

United Kingdom delegation: Free movement of persons: abuses and substantive problems - Draft Council Conclusions (EU doc no: 15903/08. 18 November 2008, pdf):

http://www.statewatch.org/news/2008/nov/eu-uk-proposal-on-free-movement-15903-08.pdf

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Intergovernmental law-making without openness and transparency is once again at work. Swift scrutiny by the European Parliament and national parliaments is called for to safeguard the rights of EU citizens.

Ralf Grahn

Lisbon Treaty ratification tally

For or against the EU Treaty of Lisbon? It does not matter, but facts on the ratification processes do.

One of the best sources is the Ratification section of the Wikipedia web page Treaty of Lisbon:

http://en.wikipedia.org/wiki/Treaty_of_Lisbon#Ratification

Quickly updated, with brief but sufficient remarks and exact parliamentary votes, Wikipedia serves an important information need.

Although parliamentary ratification is the essential requirement in political EU discourse, formally many member states provide for presidential signature, and the ratification instrument has to be deposited in Rome with the Italian government.

A short while ago the tally was: ratified 19 member states, not ratified 7 member states, rejected 1 member state. – The ratification instrument had been deposited by ten members.

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Readers interested in EU politics may care to study the outcomes of the parliamentary votes. If the national heads of state or government or even the national governments can somehow be contrived to be a mysterious ‘EU elite’, what can be said about the national parliamentarians, who in almost devastating numbers have voted in favour of the Lisbon Treaty?

Do the perceptions tally with the facts?


Ralf Grahn

Update 19 June 2008: European Union Law Blog is an excellent source of Lisbon Treaty ratification news and commentary in German. Plus there is a handy ratification list in chronological order at:

http://www.law-europe.eu/ratifikationsstand/

Especially during the last days I have noticed that EUbusiness.com has been very alert with news stories on the ratification process of the Lisbon Treaty in English. Go to:

http://www.eubusiness.com/

EU Treaty of Lisbon: conferred powers

The Constitution of the United States of America (1787) is a wonder of brevity, made apparent when we read the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC).

The European Treaties have tried to define the respective powers of the EU / EC and the Member States in minute detail, which has led to unwieldy texts for the poor reader. Still, it is impossible to fix the boundaries exactly, if both the EU and the Member States are going to have powers.

In the United States, the Tenth Amendment states that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.

More or less, the same principles apply within the European Community, TEC Article 5, although the people has been conveniently omitted. The Community shall act within the limits of the Treaty and its objectives. In areas, where the Community has been given exclusive powers, the situation is clear, in principle.

In areas of shared power, the objectives of the proposed action have to be weighed against the ability of the Member States to achieve the desired results on their own. If the results can be better achieved by the Community, by reason of the scale of the action or its effects, there may be grounds for Community action. This is the principle of subsidiarity, more or less letting the states including their sub-entities act if they are able to.

In addition, Community action shall be restricted to what is necessary to achieve the objectives of the Treaty. This is the principle of proportionality: to intrude no more than the objectives warrant.

The principles of subsidiarity and proportionality are elaborated further in a Protocol, added to the Treaty of Amsterdam, although it is debatable whether the Protocal clarifies matters substantially.

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The Treaty of Lisbon merges the European Community into the European Union and consequently the treaty structure is clarified to some degree. The main principles and institutional clauses are found in the amended Treaty on European Union, and the “earthlier” questions of various policy areas are dealt with in the Treaty on the functioning of the European Union (the re-named TEC).

The principles of conferred competences (attributed powers), subsidiarity and proportionality remain essentially the same, but are moved to the amended TEU, where a new Article 3b has been dedicated to them.

Those who fear encroachment on states’ powers, may find pleasure in the fact that the IGC 2007 added the word “only” to the text of paragraph 2, compared to the Constitutional Treaty Article I-11, which offered the wording.

Additional guidelines are found in the Protocol on the application of the principles of subsidiarity and proportionality (CIG 14/07). The new protocol is clearer than the present one, since it is more focused on the procedural aspects of the application of TEU Article 3b.

Nine articles deal with wide consultation before legislative acts are proposed, sending proposals and amendments to national parliaments, appraisal of compliance with the principles of subsidiarity and proportionality in draft legislative acts, reasoned opinions of national parliaments within eight weeks, taking reasoned opinions into account, possible review of a proposed act, jurisdiction for the EU Court of Justice and annual Commission reports on the application of Article 3b.

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In the Treaty of Lisbon (CIG 14/07) version of the Treaty on European Union (TEU), the following Article 3b has been inserted, replacing Article 5 of the Treaty establishing the European Community (TEC):

Article 3b

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.

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.

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at a central level or at a regional and local level, but can rather, by the 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.

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

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My next article on the Treaty of Lisbon is going to look at questions concerning the citizens of the European Union more directly, namely the provisions on fundamental rights.


Ralf Grahn