Article 12 [The Role of National Parliaments]

Abstract

National Parliaments ^14–17 contribute actively to the good functioning of the Union ^18–27 :

See also the commentaries on Protocols No. 1 and No. 2.

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

National Parliaments ^14–17 contribute actively to the good functioning of the Union ^18–27 :

• (a) through being informed ^32–39 by the institutions of the Union ³⁵ 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 ^43–68;

• (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 85 and 88 of that Treaty ^78–83;

• (d) by taking part in the revision procedures of the Treaties, in accordance with Article 48 of this Treaty ^75,76;

• (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. ^86,87

1 The Content of Art. 12 TEU

Art. 12 TEU summarises in a single provision—and therefore makes more “visible”¹—the “rights” and functions of national Parliaments in the new constitutional architecture of the Union. These “rights” and functions are:

• The right to be informed;

• The control on the respect of subsidiarity principle;

• The participation to the evaluation of the policies of the Union in the AFSJ;

• The participation to the scrutiny of Europol;

• The participation to the evaluation of the activities of Eurojust;

• The participation to the procedure to amend the Treaties;

• The right to be informed on the requests of new memberships in the Union;

• The participation to interparliamentary cooperation.

The very essential regulation included in Art. 12 TEU is completed by other provisions of the Treaty and, with more details, by the two Protocols, on the role of national Parliaments in the EU (No. 1) and on the control of the application of the principles of subsidiarity and proportionality (No. 2). In itself Art. 12 TEU is little more than a “summary provision”,² and for some aspects it almost seems to lack an autonomous normative content³ (different from that deriving from the provisions mentioned by it). Art. 12 TEU has in a certain sense a symbolic character,⁴ as it expresses the EU’s awareness of its incompleteness, and of the need to look beyond its constitutional structure to find a democratic legitimacy.

2 Historical Remarks

Art. 12 TEU represents a remarkable innovation ⁵ both in relation to the Constitutional Treaty and to the pre-existing legal regulation of the role of national Parliaments in the institutional architecture of the Union.

In relation to the Constitutional Treaty, the innovation is mainly (but not merely) formal, as the Treaty of Lisbon regroups in a single and specific provision⁶ “which contains an inventory of special rights which the National Parliaments will enjoy”,⁷ that were previously scattered through various provisions of the Constitutional Treaty.

From the substantive point of view, Art. 12 TEU is the final point of a long evolution of the legal regulation of the place recognised to national Parliaments in EU law.

Already at the foundation of the European Communities, national Parliaments possessed some “functions” of the utmost importance for the creation, evolution and practical operation of the Treaties and of the institutions foreseen by them: these “traditional”⁸ or “original” functions can be regrouped⁹ under the headings of “ratification”, “implementation” and “accountability” functions, and consisted, respectively, in the power to ratify the Treaties (and their amendments¹⁰), to implement the acts that were not self-executing¹¹ and to hold national Governments accountable for the positions adopted by them in the Council of Ministers.

All these functions—that correspond to the role played by Parliaments in the ratification and execution of international treaties—were pure and automatic consequences of the position of Parliaments in the national Constitutions of the six original MS: the only addition provided by the Treaties to these functions was the right of MS Parliaments to choose some of their members as members of the Parliamentary Assemblies of the Communities,¹² thus “incorporat[ing] the national Parliaments in the decision-making procedures of the Communities”.¹³ These Assemblies were endowed with simply consultative functions. On the whole, the position of national Parliaments in the three European Communities was not particularly different from the position they enjoyed in some other international organisations¹⁴ (like the Council of Europe and the WEU). It cannot surprise, therefore, that “national Parliaments have been for a long time the great absent of the construction of Europe”.¹⁵

The history of the involvement of national Parliaments in the European constitutional framework¹⁶ and of the impulse to put in evidence and to effectively exercise their national functions as a resource of the European decision-making system is a result of a long process originated on one side by the enlargement of the powers of the European Communities (and, from 1992, of the Union) through the various Treaty reforms starting from the mid-1980s and, on the other side, by the admission in the Community of new MS with a strong parliamentary tradition and with remarkable “Eurosceptic” sections of their public opinions (mainly Denmark and the United Kingdom¹⁷ after 1973).

The “first official European texts that explicitly faced the problem”¹⁸ of a direct recognition in the Treaties of the legislative assemblies of MS have been the Declaration No. 13 on the Role of national Parliaments in the EU, annexed to the Treaty of Maastricht, that merely encouraged a better participation of national Parliaments in the EU decision-making process,¹⁹ and the Declaration No. 14, that suggested regular formal meetings between national and European MPs.

The first normative provisions in EU law were those included in the Protocol on national Parliaments annexed to the Treaty of Amsterdam, that have regulated their position and prerogatives in EU law till the entry in force of the Treaty of Lisbon. The Treaty also established a Protocol on the principles of subsidiarity and proportionality, but national Parliaments were not mentioned in it as devices to control their respect.

The Treaty of Nice did not modify the regulation included in the Amsterdam Protocol, but in its Declaration No. 23 invited national Parliaments to take part to the debate on the future of the EU.

The Laeken Declaration on the future of Europe of 15 December 2001 asked to the Convention on the Future of Europe three questions that directly concerned the subject of this comment: (a) “Should [national Parliaments] be represented in a new institution, alongside the Council and the European Parliament?”; (b) “Should they have a role in areas of European action in which the European Parliament has no competence?”; (c) “Should they focus on the division of competence between Union and Member States, for example through preliminary checking of compliance with the principle of subsidiarity?” (→ Protocol No. 1 para 15).²⁰

To face these questions, the Convention on the Future of Europe created a specific Working Group (No. IV) on this topic²¹ that was also examined by Working Group I, concerning the principle of subsidiarity.²² The debate in the Convention was the decisive moment, in the sense of being “the time when a deep and serious discussion about the role of National Parliaments in the Union took place”.²³ The results of this discussion were the provisions included in the Convention Draft ²⁴ and in the TCE²⁵: giving a positive answer to the third of the abovementioned questions asked by the Laeken Declaration, national Parliaments were seen as an answer not only to the problem of their involvement in the EU decision-making process, in the perspective of its democratisation, but also to the problem of monitoring the application of the principle of subsidiarity. Besides the provisions scattered through the text of the Treaty, an organic regulation was included in the Protocols on national Parliaments and on the principles of subsidiarity and proportionality.

After the failure of the ratification of the Constitutional Treaty, the conclusions of the Presidency of the European Council held at Brussels on 21/22 June 2007²⁶ established in the mandate for the 2007 IGC that the role of national Parliaments should have been enhanced in comparison to the Constitutional Treaty. Therefore, the Treaty of Lisbon redrafted the rules concerning national Parliaments already included in the Constitutional Treaty, making them more visible through the “codification” provided by Art. 12 TEU.²⁷ Some further changes were also introduced in the two Protocols on the role of national Parliaments in the European Union (No. 1) and on the application of the principles of subsidiarity and proportionality (No. 2) (→ para 53–56). The two Protocols have the same legal force as the Treaties (Art. 51 TEU), they partially overlap and must be read in tandem²⁸ and in their systematic connection with the Treaties.

To situate Art. 12 TEU and the debate in the legal (and political science) literature that has preceded and followed it, it is necessary to ask two preliminary questions: (a) who are national Parliaments from the perspective of Art. 12 TEU (→ para 14 et seqq.)? (b) why does the European law “bother”²⁹ with them (→ para 18 et seqq.)?

3 Who Are National Parliaments?

Apparently, the first of the two abovementioned questions seems superfluous, and its answer obvious. It is evident that the homogeneity requirements for the membership of the EU deriving from the common values outlined in Art. 2 TEU presuppose the democratic organisation of the MS, whose first sign is the presence of representative assemblies , directly elected by the people with universal adult suffrage, and with the competence to adopt legislative acts (→ Art. 2 para 18 et seqq.). Nonetheless, the landscape of Parliaments in Europe is rather heterogeneous,³⁰ and this fact must be taken seriously in consideration.

The notion of “national Parliament ”³¹ is not completely defined by European law, but is derived from national constitutional law,³² that fills the gap left by the European notion. The main difference between the Parliaments existing at the national level in MS is between unicameral ³³ and bicameral ³⁴ Parliaments (where in some cases the second Chamber is only indirectly elected by the people or—in the case of the British House of Lords—is not elected at all), that is explicitly acknowledged by Art. 8 of Protocol No. 1 on national Parliaments (→ Protocol No. 1 para 113–119) and Art. 7.1 of Protocol No. 2. This latter provision gives to each Chamber one vote, if the Parliament is bicameral and two votes if the Chamber is the only assembly composing the national Parliament. But, besides this question, also the relevance of subnational Parliaments as national Parliaments in European sense in the Belgian case has to be mentioned (cf. Declaration No. 51),³⁵ while it is necessary to consider the possibility that the functions recognised by European law to national Parliaments can be delegated by national laws to Parliamentary Committees, like in the Spanish case.³⁶ The Committees—both the special Committee for European Affairs and the sectoral Committees—are actually major players who often “speak” in name of the Assemblies in the formation of the national position on European acts (→ para 104).

From the strictly legal point of view, these remarks could be satisfying. But if we look beyond the legal regulation, we see an even more heterogeneous landscape, because of the constitutional position of each national Parliament and of its situation in its own political system. If all European national Parliaments have a share in the legislative function and control the executive power, there are various differences,³⁷ concerning the monopoly or the sharing of the legislative function in unitary and regional ³⁸ or federal States,³⁹ the existence of areas of regulation reserved to the Government⁴⁰ or in which the Government can largely intervene,⁴¹ the characters of the confidence relation with the Government,⁴² the type of parliamentary government according to the characters of the political system (single-party governments; coalition governments; minority governments). And the heterogeneity concerns also the structures and procedures foreseen in national law to deal with European affairs (→ para 96 et seqq.), whose functioning, on the other side, depends also on the aforementioned differences.

Moreover, national Parliaments are not a “unitary” phenomenon, unless one moves from the identification of each Parliament with its majority: on the contrary, this is after all the less interesting aspect, given the fact that in a parliamentary system (the form of government practiced in almost all European MS) the majority (especially when composed of a single political party) usually upholds the government in power, and therefore often lacks an interest to express a position differentiated from that held by the Government. It is therefore necessary to consider other “players”, like the single (backbench) MPs,⁴³ the minor parties in a government coalition (in the case of coalition governments), the internal sections of the majority party, and the opposition⁴⁴ (or the various minorities, in a fragmented Parliament). The relevance of these various players depends not only on the political situation, but also on the distribution of powers in the national Constitution and in the internal regulations of the Chambers. Also the prevailing political culture (majoritarian or consensual⁴⁵) and the position of a Country’s public opinion on the EU (Euroscepticism vs. consensus for Europe) can be relevant in shaping the actual role of a national Parliament.

4 National Parliaments: Why Bother?

Even though the long and articulated debate on national Parliaments in the European constitutional architecture has given a familiar flavour to the problem of their role, it has, after all, to be reminded why the TEU mentions national Parliaments in order to address not (only) national but (also) European constitutional problems. While also some regional or federal States recognise (national or federal) constitutional functions to regional or MS assemblies,⁴⁶ what happens with the European “use” of national Parliaments⁴⁷ is qualitatively different: in this case, national Parliaments are not regarded as an expression of the federative principle but are considered as a complementary channel of democratic legitimacy of supranational institutions⁴⁸ and of control on the limitations to their sphere of competence. The reason of this approach must be found in some structural shortage, or in the nature itself of the European constitutional system, whose character of a “close long-term association of States (Staatenverbund ⁴⁹) which remain sovereign” continues to combine supranational and intergovernmental elements.

On the whole, national Parliaments have been seen as a possible answer to two different sets of problems: the democratic deficit (→ para 20 et seqq.) and the enforcement of the principle of subsidiarity (in the framework of the legitimacy deficit; → para 24 et seqq.).⁵⁰

4.1 National Parliaments as an Answer to Democratic Deficit

The first problem is the end uring structural democratic deficit ⁵¹ of the EU, caused by the increase of the competences of the former EC and by the consequent reduction of national competences⁵²: the direct election of the EP and the increase of its powers⁵³ after the Treaty of Amsterdam have not eliminated the deficit (→ Art. 14 para 63, 66).

On one side, the prevailing role of the European Council and of the Council of Ministers, where national Governments are represented, as a consequence of the enduring intergovernmental character of the EU, leads to look at the national level for solutions to the question of the democratic deficit. The solution has therefore been seen—at least till the Treaty of Nice⁵⁴—in strengthening the powers of national Parliaments to direct and control the European policy of their Governments. “National Parliaments are believed to be indispensable in connecting the EU to its social environment: a collection of political communities with divergent cultures, ethnicity and backgrounds”.⁵⁵

On the other side, the absence of a European demos (→ Art. 14 para 56; → Art. 1 para 28, 32),⁵⁶ of a European public opinion ⁵⁷ and the highly mediated structure and actual role of pan-European political parties (Art. 10.4 TEU; → Art. 10 para 38–48)⁵⁸ weaken the democratic legitimacy of the EP,⁵⁹ notwithstanding its constitutional position as a universally elected representative assembly.

The legal and political science analysis in the last two decades has given evidences of the thesis that depicts national Parliaments as the “losers” of integration⁶⁰: the “Europeanisation” has brought with it the “de-parliamentarization”⁶¹ (“Entparlamentarisierung”⁶²) of the decision-making process and the strengthening of the Governments, and specially of the Prime Ministers (who sit in the European Council, where the great choices are made), that is sometimes seen as a (almost necessary) consequence of a model of integration based on “executive federalism ”.⁶³ This scenario—that depicts Parliaments as merely reactive institutions, incapable of autonomous initiative, that have therefore been marginalised by the European integration—is difficult to be challenged, but it must be said that the increase of the powers of Prime Ministers and Presidents and the de-parliamentarisation itself is a more general phenomenon⁶⁴ that characterises West European democracies and that is typical also of Countries with parliamentary systems not participating to the EU (Canada being a classical example): the thesis of the “presidentialization” of politics⁶⁵ in parliamentary systems is a good summary of that. Moreover, the crisis of political representation has also other causes, rooted in the transformations of politics in post-industrial societies.

Although the progressive increase of the powers of the EP after the Treaty of Maastricht, and specially under the Constitutional Treaty, and now under the Treaty of Lisbon (“internal democratisation”; → Art. 14 para 4)⁶⁶ is aimed at reducing the democratic deficit at the supranational level, the enduring role of the intergovernmental structures of the EU requires to integrate this approach with an “external democratisation”, enabling national Parliaments to influence more deeply their Governments.⁶⁷ In this perspective, if there is “a trend towards a parliamentarisation of European politics”,⁶⁸ “internal” and “external” parliamentarisation do not necessarily exclude each other.⁶⁹ On the contrary: they can play complementary roles in the perspective of building a European parliamentary system.⁷⁰ This complementarity was already highlighted in the Maastricht decision of the German Constitutional Court of 1993.⁷¹

“Up to the European Constitutional Treaty the problem of the position of National Parliaments in the European institutional system has been treated and perceived as a problem of internal [i.e. Member State] Constitutional law”.⁷² During the works of the Convention on the Future of Europe, the perspective changed and two different approaches emerged.

The traditional view was developed in the sense that the role of national Parliaments should have been enhanced only eliminating all the obstacles that prevent each single Parliament from exercising an appropriate influence on the position of its Government in the Council of Ministers (and specially facing the information deficit), but without changing the European decision procedures.

According to another view, on the contrary, a specific place for national Parliaments in the EU constitutional architecture should have been found, if necessary modifying the way in which EU had worked till that moment and enabling national Parliaments to exercise powers in the formation of European acts.⁷³

While in the first perspective internal and external democratisation each have their own—specific and distinctive—field, from the second point of view a certain degree of competition between the two forms of parliamentarisation could emerge, especially if the idea of allowing to national Parliaments a direct—and not only an indirect—participation to the EU decision-making process should have been developed to the point of creating a second Chamber at the European level.

The compromise solution adopted by the Convention, and further developed by the Treaty of Lisbon, while refusing the institution of a second Chamber (→ para 26), has recognised a “direct” role of national Parliaments that seems to be built in order to avoid a competition with the EP and of strengthening the parliamentary control , extending it to the phase of the formation of European acts, from the point of view of the principle of subsidiarity.

4.2 National Parliaments and the Principle of Subsidiarity

The two faces of the principle of subsidiarity—leaving the decision (the so called Vorrangentscheidung) at a level of government that is the nearest possible to the citizen and enabling “higher” levels of government to attract the exercise of competences when the nearest level is not the appropriate one—and the decline of the federal ideal during the 1990s have highlighted the legitimacy deficit of European decisions⁷⁴: such “decisions” (especially legislative acts) are legitimated only if it can be demonstrated that a given action can be better pursued and realised at the European level rather than at the national or local level and only if such action is limited to what must be necessarily done at a supranational level. Given the fact that national Parliaments are the main losers⁷⁵ when a competence is exercised at the European level, enhancing their role in the European decision-making process means to seek in them a check to the expansion of the regulation from Brussels. “National Parliaments, more than any other institution, are uniquely appropriate for the role of vigilant ‘subsidiarity watchdogs’ because they are ‘at the frontier of competence’”. Whenever the EU acts in the sphere of shared competences, regulated by the principle of subsidiarity, “this entails a potential encroachment upon National Parliaments’ domain”.⁷⁶

These two problems are of course intertwined: the more the decision is “attracted” at the European level, the higher is the necessity of a democratic legitimacy not only through the EP, but also through national Parliaments, because of the fact that the powers of national Governments are increased when a matter is transferred to the European level. “While advancing subsidiarity, [national Parliaments] also—being, for the most part, directly elected representative bodies—advance democratic legitimacy”.⁷⁷ This need is of course stronger in those fields where the role of the EP is reduced or excluded⁷⁸ (such as in the AFSJ, the former third pillar).

The most radical solution to face the problem of the role of national Parliaments would have been the creation of a Chamber of the States (or a “Chamber of subsidiarity” or a European Senate ⁷⁹), composed of members of national Parliaments, that should have been placed at the side of the directly elected Parliament, thus giving a bicameral structure to the EP. Besides subsidiarity, a European second Chamber could have been instrumental to “fill the gaps” of the democratic control in the EU, checking the activities of the European Council and operating specially in the areas not covered by the EP’s powers.⁸⁰

Against this solution⁸¹ lies not only the fact that a second Chamber of this type resembles the indirectly elected EP originally created by the Treaty of Rome, before the adoption of the direct election in 1976 and its implementation in 1979,⁸² but also the fact that the MS already enjoy a strong representation in the EU institutional system through the Council (Art. 10.2 (2) TEU; → Art. 10 para 11). The Council, indeed, performs a role that can for certain aspects be compared to a Chamber of States that would be duplicated by a Chamber of Parliaments.⁸³ Some observers also remark that a second Chamber, being indirectly elected, would be of little help in terms of democratic legitimacy, while it would have further complicated the decision-making system.

During the works of the Convention on the Future of Europe, besides the idea of a second Chamber, the proposal of the creation of a “European Congress ”, composed of some members of the national Parliaments and of the EP, was discussed. It was strongly supported by the Convention’s President, Valéry Giscard d’Estaing, and it was included in the “preliminary draft” of 28 October 2002,⁸⁴ but it was opposed by the EP and was finally rejected (→ Art. 13 para 36).

Furthermore, it is possible to see here at the highest level of clarity a trade-off concerning the regulation in EU law of national Parliaments within the EU decision-making process, in the context of the institutional reforms after the Treaty of Nice: the trade-off⁸⁵ is between a stronger institutionalisation of the role of national Parliaments (and therefore the democratisation of the Union) and the simplification of the decision-making process, which was another objective of the failed constitutional season.⁸⁶

5 Classifying the Functions of National Parliaments in the European Perspective

While the base of the role of national Parliaments is an accurate and swift information about the activities of the EU institutions, the attributions of national Parliaments in European law can be classified in two categories, the second of which has to be divided into three sub-categories.

The basic distinction is between European rules that enable national Parliaments to better fulfil their functions of control on their respective governments at the national level, in the formation of national positions about the adoption of European acts, and rules that allow national Parliaments to participate to European procedures as such, besides and beyond the control of their own governments.⁸⁷ While the first type of functions find its (European) legal base in Art. 10 TEU (while its proper foundation lies in national constitutional law⁸⁸), Art. 12 TEU is the legal basis for the second type of functions, that are labelled under a common purpose: to “contribute actively to the good functioning of the Union”.

This second category—the one that is, ça va sans dire, the more problematic—can be further subdivided in three types of functions:

• a) Functions aimed at protecting national prerogatives,⁸⁹ in which national Parliaments act as a check or as a “brake” of some activities of the institutions of the EU;

• b) Functions corresponding to the classic parliamentary control, in which national Parliaments integrate and complement the role of the EP;

• c) “Cooperative” functions both with the EP (vertical) and with Parliaments of other MS (horizontal).⁹⁰

This classification of the rights and powers recognised to national Parliaments can of course be read together with a classification that puts in evidence the type of Union activity to which Parliaments are entitled to take part (“general” Union activity; AFSJ; CFSP), or the kind of (European) constitutional role Parliaments are entitled to play. But even though the “depillarisation” of the EU falls short from eliminating every trace of it, a classification based on the purpose of the activity of national Parliaments appears more interesting in order to try to understand their role.

Although Art. 12 TEU is placed in the Title of the Treaty dedicated to the democratic principles—in a perspective that channels the democratic impulse through the EP on one side and through the national Governments, on the base of the responsibility of the latter before the national Parliaments (→ para 101), on the other side (Art. 10.2 TEU)—it is easy to see that the functions of national Parliaments cannot be reduced simply to a democratic perspective. It seems more accurate to situate them in the context of the EU constitutional architecture, i.e. of a “multilevel parliamentarism”⁹¹ or of a “Mehrebenendemokratie”⁹² as a part of the European “multilevel constitutionalism”: “national Parliaments are becoming a consistent part of the multilevel European institutional system”.⁹³

In this context, national Parliaments perform multiple functions, and while governments perform “legislative” functions in the European institutional framework although being originally non-legislative bodies, national Parliaments, though being properly legislative bodies in their national constitutional contexts, perform functions of control, check and “brake” in the European constitutional context. Clearly, at least at this stage of the evolution of the European institutions, the interparliamentary “soul” of the European institutional system cannot be compared with the intergovernmental “soul” and its strength is based more on advisory than on binding functions.

All the rules concerning national Parliaments, with the exception of those that establish duties of information, share a fundamental character in relation to national Parliaments: they have a “facultative” nature, in the sense that they can only enable or authorise national Parliaments to play a role in the European system, but they cannot oblige them. We can describe this situation with the words of Philip Kiiver: “The European Union can hardly prevent the national Parliaments from exercising a stricter oversight, if they so wish, but it cannot force them to be more active either. All it can do is to stimulate their interest and facilitate or even institutionalize their EU-level participation for a European purpose, depending on how that purpose is defined”.⁹⁴

6 The Right of National Parliaments to be Informed

The first group of rules concerning national Parliaments in the Treaty of Lisbon is aimed at eliminating or at least at reducing the condition of information deficit,⁹⁵ or of information asymmetry⁹⁶ in which they are placed in relation to national Governments and the EU institutions. The elimination, or at least a sensible reduction, of this asymmetry is functional to allow them to direct the action of Governments and to hold them actually accountable in EU affairs. Therefore, the constitutional grounds of these rules are to be found not only in Art. 12 TEU, but also in the working of representative democracy as outlined in Art. 10.2 TEU, articulated on one side on the direct election of the EP by the citizens and, on the other side, on the democratic accountability of national Governments to their national Parliaments.

The Treaty of Lisbon faces the information deficit and represents an evolution of the existing legal regulation both from the perspective of the quality of the informations that national Parliaments are entitled to receive from the European institutions, and from the perspective of the extension of the said informations. Its objective is to “increase the flow of information about the Union’s legislative activities”,⁹⁷ both in the way in which information is transmitted (→ para 34) and in the extension of the said information (→ para 35).

According to the Protocol annexed to the Treaty of Amsterdam, “all Commission consultation documents (green and white papers and communications) shall be promptly forwarded to national Parliaments of the Member States” (Art. 1.1): the text did not specify that the documents had to be forwarded directly.⁹⁸

The Treaty of Lisbon states now expressly that the notification of the documents that Parliaments are entitled to receive must take place “directly” by the Commission, at the same time when they are transmitted to the EP and to the Council (Art. 1 of Protocol No. 1). In the same way, legislative drafts elaborated by the EP must be transmitted directly from the EP to national Parliaments, while drafts originating from other institutions must be transmitted by the Council (Art. 2 of Protocol No. 1). The intermediation of national Governments is thus suppressed.⁹⁹

According to the Protocol annexed to the Treaty of Amsterdam, the objects of the national Parliaments’ right to be informed were consultation documents (green papers, white papers, communications), while Commission proposals for legislation had to be made available for the MS Governments, upon whom did rest the responsibility for their transmission to national Parliaments.

According to the Treaty of Lisbon, the object of information has been widened to a long series of items:

• 1) Annual legislative program,¹⁰⁰

• 2) Any other instrument of legislative planning or policy,¹⁰¹

• 3) Draft legislative acts originating from the Commission, the EP, a group of MS, the CJEU, the ECB and the EIB,¹⁰²

• 4) Amended legislative drafts adopted by said actors,¹⁰³

• 5) Agendas and outcomes of the Council,¹⁰⁴

• 6) Legislative resolutions of the EP and positions of the Council,¹⁰⁵

• 7) Annual report of the Court of Auditors,¹⁰⁶

• 8) Applications from foreign States for accession to the Union.¹⁰⁷

Additional procedures aimed at reducing the information asymmetry are included in the specific functions of the national Parliaments concerning the flexibility clause, the accession of new MS, the amendment procedures, and the specific control functions on Europol and Eurojust. In the case of the flexibility clause , Art. 352.2 TFEU specifically mandates the Commission to recall the attention of national Parliaments on the proposals based on that Article.

In this context, even though there is the “risk of submerging interested parties in a mass of unprioritised information which could not possibly be digested”,¹⁰⁸ the right to be informed seems to be effectively granted, given the fact that only the area of the CFSP remains outside the scope of these information duties and rights.

Information is only a pre-condition to allow national Parliaments to participate to the European decision-making process, both directly and indirectly (through their Governments).¹⁰⁹ The widening of the information flow requires from Parliaments the willingness and the ability to use it, first of all becoming able to select the information, and secondly building procedures allowing the use of the relevant information.¹¹⁰ This is the national side of the problem that remains outside the scope of the Treaty, given the principle of constitutional autonomy of MS. Art. 10 of Protocol No. 1, enabling the COSAC to prepare codes of best practices is a soft way to support the role of national Parliaments, without eroding the constitutional autonomy of MS (→ Protocol No. 1 para 161, 167).

The right of each national Parliament to be informed is functional to the right to participate effectively to the formation of the national position on the act that is going to be adopted. To allow this participation already the Protocol on national Parliaments annexed to the Treaty of Amsterdam had established a period of 6 weeks between the date in which a legislative proposal is made available i n all the languages to the EP and the Council by the Commission “and the date when it is placed on a Council agenda for decision”.

This period—now increased to eight weeks by the Treaty of Lisbon¹¹¹—should be used by a national Parliament to influence the position of his government in the Council. In order to avoid the frustration of this possibility, the Protocol annexed to the Treaty of Lisbon expressly forbids (“save in urgent cases for which due reasons have been given”) that “agreement may be reached on a draft legislative act during those eight weeks”. For the same reason the Protocol also establishes that “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”.¹¹²

Art. 3.3 of the Council’s Rules of Procedure adopted in 2009¹¹³ establishes now that legislative acts are placed on the provisional agenda of the Council 8 weeks after their communication to national Parliaments.

These new rules, and specially the 8 weeks deadline, “constitute a condition of validity of the act adopted”¹¹⁴: their violation would open the way to “the risk that not merely the member State, but also any person, will be able to invoke the inapplicability of the Union act (i.e. the full act and not just part of it) before the Court of Justice via the preliminary ruling procedure”.¹¹⁵

European law does not foresee a right of a national Parliament to submit opinions to the European Commission on the content of a legislative proposal. But the general statement that opens Art. 12 TEU (“National Parliaments contribute actively to the good functioning of the Union”) and its connection with the right to information (that is not limited to subsidiarity profiles) can be seen as a legal base for a right of national Parliaments to submit contributions to the European organs in any phase of the procedure for the adoption of legislative acts.

In 2006 the Commission expressed the intention to start a political dialogue with national Parliaments, inviting them to express their opinions both on the content of the documents elaborated by the Commission and on the respect of the principles of subsidiarity and proportionality and this intention was welcomed by the Council. Therefore, on 17 July 2006, a letter of the President of the Commission, José Manuel Durão Barroso, to the Presidents of national Parliaments announced this extended implementation of the procedure foreseen in the Protocol on the principle of subsidiarity. A new letter of the Commission on 1 December 2009, at the moment in which the Treaty of Lisbon entered in force, has confirmed this procedure (usually defined as “political dialogue” or “Barroso initiative”). This procedure runs parallel to the early warning system and is actually intertwined with it. But it is necessary to underline that the political dialogue has at the same time a partially different object (all the documents elaborated by the Commission, not only the draft legislative acts, but not the draft legislative acts elaborated by other authorities) and a wider scope (not only the respect of the principle of subsidiarity, but also the respect of the principle of proportionality and the content of the document). In the framework of the Barroso initiative, the Commission has received 168 opinions in 2006–2007, 200 in 2008, 250 in 2009, 387 in 2010 and 623 in 2011.

7 “Functions” of National Parliaments in the European Union Aimed at Protecting National Prerogatives: The Control on the Respect of the Principle of Subsidiarity

Two of the questions asked by the European Council in the Declaration of Nice adopted in 2000 concerned the role of national Parliaments in the European architecture and the control on the respect of the principle of subsidiarity by EU institutions.¹¹⁶ Identifying national Parliaments as the guardians of subsidiarity has been the convergence of two different problems that were of course already connected before 2000, with the joint purpose of upgrading the Parliaments and of upgrading the principle.¹¹⁷

Yet, it must be remembered that this was not the only possible solution and that others had been proposed,¹¹⁸ that would have had a judicial (a “chamber of subsidiarity” in the CJEU; an ex ante judicial review on subsidiarity grounds¹¹⁹ or even a new independent Court, specialised in subsidiarity questions¹²⁰) or an entirely political nature (a special committee composed of a member of the Commission and national MPs,¹²¹ the appointment of a “Mr.” or “Mrs. Subsidiarity”—a sort of ombudsman—giving maybe the maximum possible visibility to the issue). The regulation adopted in the Constitutional Treaty and confirmed in the Treaty of Lisbon combines a procedural solution that involves national Parliaments with an ex post judicial control before the CJEU that may be activated (also) by them (→ para 62 et seqq.).

Four mechanisms have been foreseen by the Treaty of Lisbon, adopting (and, in marginal aspects, adapting) solutions that had emerged in the Convention on the Future of Europe and that represent a substantive innovation in relation to the previous Treaties: (a) the obligation to justify legislative drafts with regard to the principles of subsidiarity and proportionality (→ para 43); (b) the “early warning” system (→ para 44 et seqq.); (c) the “yellow card” mechanism (→ para 50 et seqq.); (d) the “orange card” mechanism (→ para 53 et seqq.). An action before the CJEU “crowns” and completes this system.

This kind of mechanisms does not have any connection with the federalist tradition¹²² and their ratio legis lies only in the peculiarities of a League of sovereign States like the EU.

7.1 Justification of European legislativ e Drafts with Regard to the Principle of Subsidiarity

The main function recognised to national Parliaments in the Treaty of Lisbon is that of guardians,¹²³ sentinels ¹²⁴ or watchdogs ¹²⁵ of subsidiarity.

In order to allow national Parliaments to perform this function, each legislative draft has to be “justified with regard to the principles of subsidiarity and proportionality”. For this purpose, each draft should include a detailed statement explaining how both principles have been complied with.¹²⁶

This procedure was originated by an inter-institutional agreement between the EP, the Council and the Commission on the procedures to implement the principle of subsidiarity¹²⁷ and had already been codified in the Protocol on subsidiarity annexed to the Treaty of Amsterdam.¹²⁸ Neither the Constitutional Treaty, nor the Treaty of Lisbon have added anything on this point.

7.2 The “Early Warning System ”

On the base of this information, national Parliaments have a period of eight weeks (in comparison with the 6 weeks foreseen by the Protocol annexed to the Constitutional Treaty; → para 38¹²⁹) to submit to the Presidents of the EP, of the Council and of the Commission their reasoned opinions in which are exposed the reasons for which they believe that the draft does not comply with the principle of subsidiarity. This is the so called early warning system,¹³⁰ whose introduction had been proposed by the Group I of the European Convention.

The meaning of this procedure—differently from the Treaty of Amsterdam, where only a right of information, substantial criteria on the application of the principle of subsidiarity and a delay of 6 weeks were foreseen, but no procedure for the participation of national Parliament was devised—is to allow national Parliaments to formulate their objections before a European act has been adopted. If a weakness of the Amsterdam Protocol was that it did not provide “a political mechanism through which the Commission’s justification could be challenged on subsidiarity grounds”, the early warning system creates “the conditions for a thoroughgoing inter-institutional argument on whether proposed legislation is appropriate in the light of subsidiarity”.¹³¹ According to Cooper,¹³² the early warning system has been structured as a dialogic instrument and therefore requires a dialogic approach—a mutual openness to persuasion—both from the Commission (who must justify its proposals, take into account the reasoned opinions and review them in the case of the use of the yellow card) and from national Parliaments (who can submit “reasoned” opinions and must therefore argue with the Commission, not simply exercise a—merely negative—veto power).

The principle of subsidiarity is the general criterion according to which national Parliaments are enabled to submit to the Presidents of the EP, the Council and the Commission reasoned opinions in the framework of all legislative procedures.¹³³ According to the wording of the Protocol, the opinions cannot criticise the draft act from the point of view of the proportionality ¹³⁴ or of its substance, but must be limited to the subsidiarity profiles (→ para 39), notwithstanding the fact that the Commission’s proposals have to be justified from the point of view of both principles (→ Protocol No. 2 para 47 et seqq.).

This possibility to submit an opinion seems to be limited to the areas of shared competences. This means that it should be excluded both in the areas that fall in the exclusive competences of the EU, whose exercise is not regulated by the principle of subsidiarity, and in the areas in which the Union does not have competences at all. Therefore it could be argued that the subsidiarity monitoring procedures may not be used to denounce the lack of competence of the Union.¹³⁵ But from a systematic point of view, the control on the respect of the principle of subsidiarity presupposes the control of the respect of the principle of attribution¹³⁶: actually, an action of the Union totally outside the sphere of its competence, although violating in first line the principle of conferral, would generate also a violation of the principle of subsidiarity in its more general sense of prohibiting all the actions that can be better realised at the MS level and in the cases where the EU does not have competence at all, the preference for the level of government nearest to the citizen is legally presumed.

For what concerns the AFSJ, given the peculiarity of the working of the EU in this area, Art. 69 TFEU expressly confirms that MS’ Parliaments control that proposals and legislative initiatives in the fields of “judicial cooperation in criminal matters” and of “police cooperation” “comply with the principle of subsidiarity, in accordance with the arrangements laid down by [Protocol No. 2]”.

The institutions who have prepared the draft to which the opinion is referred shall take into account the opinions of the national Parliaments who have submitted it.¹³⁷ This means that the EU institutions must interact with them, not just acquire knowledge of the opinion.¹³⁸ An integration of the motivation of the act seems to be necessary,¹³⁹ but there is no other obligation for the authority who prepared the draft.

Even though the Commission remains free to maintain its proposal, because there is not a legal obligation for the Commission to conform its proposals to the opinions,¹⁴⁰ the reasoned opinions are likely to be taken seriously in consideration, if the Parliaments are determined to use their influence on their respective Governments, and therefore on the Council.¹⁴¹ Here it is possible to observe the interaction between the “European” and the “national” functions of national Parliaments, between Art. 12 and Art. 10 TEU.

The possibility for national Parliaments to submit reasoned opinions in which they argue that the principle of subsidiarity has been infringed became operative starting on 6 February 2010, when the Commission transmitted to the national Parliaments its first proposals in the framework of the early warning system. On 29 April 2010 the Commission received the first reasoned opinion from the Polish Sejm. During 2010 the Commission has received 34 reasoned opinions arguing that the principle of subsidiarity had been violated. Other 63 opinions of this type have been adopted by national Parliaments in 2011, for a total of 117 in the first 2 years in which the early warning system has been operative. The numbers of reasoned opinions of this type are clearly smaller than those submitted to the Commission in the framework of the “political dialogue” (→ para 39).

Art. 6.1. of the Protocol on the principle of subsidiarity leaves to each national Parliament to consult “regional parliaments who have legislative powers” and to take their opinions into account before submitting their own reasoning opinion to the EU authorities. This provision should be interpreted as establishing a duty to consult (in MS where regional Parliaments with legislative powers actually exist), but the addressee of this duty is only the national legislator, who is responsible to structure the consultation as a duty for the national Parliament or for one of its Chambers and to define also what consequences follow from a regional parliament’s opinion.¹⁴² Art. 23.g.3 of the Austrian constitution and Art. 6 of the Spanish law no. 24/2009 both require their national parliamentary authorities (respectively the National Council and the Mixed Commission on European Union Affairs) to transmit the legislative projects to regional Parliaments and to take into account their opinions.

7.3 The “Yellow Card”

Besides this first form of participation, a second level of interaction between national Parliaments and European institutions is foreseen by Art. 6 and 7 of Protocol No. 2: through it, MS Parliaments are enabled to act collectively and not only individually. In these procedures every parliamentary Assembly is “weighted” with two votes if it is the only Chamber composing the national Parliaments, and with one vote when the Parliament is bicameral. Every Chamber can express an opinion and can be “weighted” in the procedures foreseen in the Protocol: the two Chambers of a national Parliament are not required to agree on the reasoned opinion, at least from the Union point of view (→ Protocol No. 1 para 113; → Protocol No. 2 para 74 et seqq.; 161 et seqq.).¹⁴³

According to the so called “yellow card procedure”, if the opinions concerning the non-compliance of an European act with the principle of subsidiarity represent at least one third of the votes allocated to national Parliaments (18 votes out of the 54 given to the 27 national Parliaments), the draft must be formally reviewed.

The threshold (that in itself is rather high,¹⁴⁴ especially if we consider that physiologically national Parliaments are not fit to build a supranational consensus, as Governments are, but are placed in the perspective of their own national interest) is lowered to a quarter when the project concerns the AFSJ.

The protocol does not require the reasoned opinions to be coordinated¹⁴⁵ or coherent with each other, and therefore does not require a formal coordination between the national Parliaments in submitting the opinion, but of course nothing forbids such a coordination to take place spontaneously through the interparliamentary coordination foreseen by Art. 9 of Protocol No. 1. Indeed, it seems likely that the early warning system “will lead to an extension of networks between National Parliaments”.¹⁴⁶

After the review, the Commission or the other authorities who had prepared the draft has three choices: maintaining, amending, or withdrawing the legislative draft. “Reasons must be given for this decision”.

In the first 2 years in which the early warning mechanism has been operational, the threshold necessary to activate the yellow card was never reached. It has been reached for the first time on 24 May 2012, when 12 national Parliaments (7 unicameral and 5 chambers of bicameral Parliaments) have submitted to the Commission reasoned opinions arguing that the draft regulation on the right to strike¹⁴⁷ was infringing the principle of subsidiarity. At the moment it is not yet clear how the Commission will react.

7.4 The “Orange Card”

A variation on this procedure is included in Art. 7.3 of Protocol No. 2, that introduces a “heightened”¹⁴⁸ or qualified form of participation of national Parliaments, that is a novelty even in comparison with the Constitutional Treaty (and actually the only entirely new provision included in the Protocols No. 1 and No. 2 annexed to the Treaty of Lisbon in comparison with those annexed to the Constitutional Treaty¹⁴⁹).

This form of control was required by the Government of the Netherlands, who considered the yellow card system insufficient and negotiated the introduction of an “additional specific mechanism” during the German Presidency of 2007. Both considering the national colour of the Netherlands and the fact that this procedure is a middle way between the “yellow card” and a “red card” (that was not accepted by the Treaty of Lisbon), this system is sometimes called “orange card” (→ Protocol No. 2 para 178–183).¹⁵⁰

This type of participation of national Parliaments is qualified in two directions: on one side it is expressly limited to “the ordinary legislative procedure” (the co-decision of EP and Council); on the other side it operates when the reasoned opinions concerning the non-compliance with the principle of subsidiarity are adopted by the majority of national Parliaments (28 votes out of 54). Therefore, the “orange card” is a variation, or a heightened form of the “yellow card” mechanism, and not a second stage of it, like the one proposed in the Convention on the Future of Europe “wherein National Parliaments could issue a second round of ‘reasoned opinions’ when the Conciliation Committee is convened”.¹⁵¹

In this case, the draft must be reviewed and after such review the Commission¹⁵² decides whether to maintain, amend or withdraw the proposal. The decision to maintain the proposal has to be motivated (not, it seems, the decision to withdraw or to amend it¹⁵³) with reference to the principle of subsidiarity and the reasoned opinions both of the Commission and of national Parliaments are submitted with the draft to the legislative authority of the EU, who must take account of both positions.

Before concluding the first reading, the legislator (EP or Council) shall consider whether the legislative proposal is compatible with the principle of subsidiarity, taking particular account of the reasoned opinions of the Commission and of national Parliaments. But in these cases “it is very likely that the majority of government votes needed in the Council to enact legislation at the EU level is already lacking”.¹⁵⁴

If a majority of the Council (55 %) or of the EP finds that the proposal infringes the principle of subsidiarity, “the legislative proposal shall not be given further consideration”: it is a sort of subsidiarity (political) preliminary ruling¹⁵⁵ that forbids the continuation of the legislative procedure.

It has been argued that this is a symbolic rule, because, without a majority in the Council and in the EP no proposal could be approved.¹⁵⁶

7.5 Some Critical Remarks

The orientation that had emerged in the Constitutional Treaty against an even stronger procedure, that would have allowed to a qualified group of national Parliaments to veto a proposal for infringing the principle of subsidiarity¹⁵⁷ (the so called “red card procedure”¹⁵⁸) has been confirmed by the Treaty of Lisbon, “in order to avoid infringing the monopoly of initiative of the Commission”.¹⁵⁹

The kind of control introduced by the Treaty of Lisbon can be defined—like the similar procedure included in the Constitutional Treaty—as an ex ante and political control,¹⁶⁰ that can be compared to the “political safeguards of federalism” known to the US constitutional literature.¹⁶¹

This procedure is rather complicated ¹⁶² and baroque, in proportion to the results that can be achieved through it. While the result of the procedure in the first type of participation—simply obliging the Commission to review the draft in front of the reasoned opinions of a minority of national Parliaments—seems proportionate to the degree of parliamentary involvement that it requires, the “qualified” procedure for which the agreement of the majority of national Parliaments is necessary should either not have been foreseen, or have been given a major strength, allowing it to interrupt directly the legislative procedure. That a reasoned opinion subscribed by the majority of national Parliaments does not have the force to stop the legislative proposal is a paradox in the perspective of the democratic principle, to the foster of which the role of national Parliaments has been structured.¹⁶³ On the other side, it must be recognised that, given the fact that national Parliaments are simply calculated on an equal footing, without considering the number of people they do represent (with a consequence that a majority of national Parliaments could correspond to a slim minority of the EU total population), this latter objection cannot be overemphasised.

This is even more true if we consider that the burden placed on national Parliaments is rather high. According to Paul Craig, it “may not be easy […] to present a reasoned argument as to why the Commission’s comparative efficiency calculation is defective” and “it will be even more difficult for the requisite number of National Parliaments to present reasoned opinions in relation to the same EU measure so as to compel the Commission to review the proposal”.¹⁶⁴

Moreover, the importance of the pre-emptive control system described above has “little constitutive value”,¹⁶⁵ if we consider that, after all, national Parliaments could already file complaints and send them to the Commission, without the need of formally been enabled to do so.¹⁶⁶ But this procedure has “some catalyst potential”,¹⁶⁷ in the sense that is stimulates the use of powers already possessed, and now formally recognised at the level of the Treaties and instrumentally enriched with a complete flow of information to support them.

On the whole, the sense of these procedures seems to be twofold. On one side, the weight of the opinions of a group of national Parliaments, if they are able to formulate the required reasoned opinions, is likely to be high, independently from the formal duty of the Commission to review the proposal¹⁶⁸: this informal strength should not be underestimated.

On the other side, should the act be adopted even against the opinion of a high number of national Parliaments, these procedure introducing a ex ante political control on the principle of subsidiarity could be instrumental to strengthen the ex post judicial review on the respect of the same principle.¹⁶⁹ Actually, the tentative¹⁷⁰ to “give teeth” to the principle of subsidiarity can be seen not only in itself but also in the perspective of a successive legal challenge to the regulation adopted against the reasoned opinions on the respect of the principle of subsidiarity.

The ex ante subsidiarity control that national Parliaments can activate, both as a single Chamber and as a group (in the forms regulated by Art. 6 and 7 of Protocol No. 2), requires the adoption by the MS of internal provisions concerning the procedures for the adoption of the reasoned opinions. At the moment, while some MS have adopted new constitutional provisions,¹⁷¹ other States have chosen the statutory form¹⁷² or have regulated the procedure through an informal—and provisionally not yet codified—practice.¹⁷³ Concerning the substantial choices, the main difference seems to be between the States who have empowered a Committee to adopt the reasoned opinions¹⁷⁴ and those that have reserved the decision to the Assembly,¹⁷⁵ but sometimes exceptions to the general rule are allowed.

8 The Access of National Parliaments to Judicial Protection Against the Infringement of the Principle of Subsidiarity

8.1 The European Law Framework

According to Art. 8 of Protocol No. 2, the CJEU “shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a legislative act”.¹⁷⁶ The Treaty of Lisbon thus confirms the justiciability of the principle of subsidiarity, already established in the case law of the Court of Justice. But the difficulty of using the principle of subsidiarity as a mean to check in a case before a judge the intervention of the “subsidiary” level of government is very well known, both in the experience of some federal States (especially Germany, concerning Art. 72 of the Basic Law) and in the decisions of the Court of Justice. The Court of Luxemburg, actually, has been consistently unwilling to review Union legislation for alleged violations of subsidiarity¹⁷⁷ and, at least in the EU harmonisation legislation, restricts its review to “examining whether [the exercise of the discretion of the legislator] has been vitiated by manifest error or misuse of powers, or whether the institution has manifestly exceeded the limits of its discretion”.¹⁷⁸

The “proceduralisation”¹⁷⁹ of the principle of subsidiarity already outlined in the Protocol annexed to the Treaty of Amsterdam, and now strongly developed by the Treaty of Lisbon will allow the Court to check the compliance with the procedural rules devised to protect the respect of that principle¹⁸⁰: the “proceduralisation is the necessary prerequisite of a judicial review [of the principle of subsidiarity] that will be centered on the control of the motivation and of the violation of the rights of participation”.¹⁸¹ Viewed in connection with the ex ante political control, the “ex post judicial review on subsidiarity grounds may be poised to take a whole new potency; […] thanks to the yellow card system, the Court may be presented with a mass of ‘reasoned opinions’ detailing the subjective objections held by National Parliaments. With such a wealth of material, argumentation over subsidiarity could metamorphose from the politically subjective into the readily justiciable”.¹⁸²

But the Treaty also introduced an innovation, consisting in the forms in which such action can be brought before the Court by MS.¹⁸³ Art. 8 (1) of the Protocol recalls “the rules laid down in [Art. 263 TFEU]”, but adds that the action can also be “notified by [the MS] in accordance with their legal order on behalf of their national Parliament or a chamber thereof”.¹⁸⁴

The aforementioned provision of the Protocol is for some aspects ambiguous: National Parliaments are expressly mentioned as initiators of an action before the CJEU, but, at the same time, the Protocol confirms that only national Governments are entitled to bring the case before the Court, also in the case in which the initiative comes from their Parliaments. The proposal included in the report of Working Group I of the Convention on the Future of Europe to recognise to Parliaments the power to bring directly an action before the Court¹⁸⁵ has therefore not been totally accepted and the solution already foreseen in the Constitutional Treaty (the intermediation of Governments) has been adopted: Art. 8 of Protocol No. 2 “does not grant national Parliaments a right of action to the ECJ, but, rather, makes such an action dependent on national law and the normal requirement of an action for annulment”.¹⁸⁶ A reason for this choice can be found in the respect of the constitutional autonomy of the MS, to which a margin of choice on the regulation of this topic has been recognised.

The room left to MS in the regulation of the standing before the Court against the infringement of the principle of subsidiarity is not clear. It has been suggested that Art. 8 is not an innovative provision, and that nothing has changed in the rule that the Governments, and only the Governments, can bring an action before the CJEU.¹⁸⁷

The interpretation of the provision of the Protocol has to face at least three problems. Firstly, it can be interpreted as establishing an obligation for the national legislator to foresee a request of the Parliament to bring the action before the Court or as a mere Authorization to the national legislator to introduce the parliamentary request: the necessity to interpret the provision in the sense of giving it a meaning instead of an absence of meaning suggests that the national legislator is obliged to foresee the parliamentary request.¹⁸⁸ But, in this case, what would be the consequence of the violation of such an obligation? Could it be controlled by the CJEU or should the violation be reviewed solely by a national Court (e.g. by a Constitutional Court), given the necessity to respect the principle of institutional autonomy of MS confirmed by Art. 4.2 TEU?¹⁸⁹

Secondly, it is necessary to define the margins of choice for the national legislator, concerning the form in which the parliamentary request must be prepared and the existence of a margin of appreciation of the national Government: in this field constitutional autonomy should lead to give value to the margins of choice of the national legislator.¹⁹⁰

Thirdly, it should be asked what could be the consequences of the inactivity of the national legislator in implementing Art. 8 of the Protocol: in our opinion, the Parliamentary request should not be considered as paralised till the moment of the adoption of a national law on the topic, but in that cases some elements of incertitude remain, for example about the consequences of the inactivity of the Government in transmitting the request.

Any violation of a mandate of a national Parliament—and more generally of national constitutional or statutory rules on this subject—should find its sanction within the single national legal order, and should be channelled either through the rules of political responsibility or through the instruments foreseen by national law to resolve conflicts between the organs of the State.

The right to contest an European act on subsidiarity grounds before the Court of Justice is not restricted to those Parliaments—or those Chambers—who have submitted reasoned opinions in the early warning system (this had been, on the contrary, the proposal of the Working Group I of the Convention on the Future of Europe),¹⁹¹ but can be exercised also by Parliaments who remained inactive in the first phase. The right is expressly recognised to each Chamber of bicameral Parliaments.

8.2 Some Examples of Provisions Implementing Art. 8 of Prot. No. 2 in National Law

An example of a national provision granting to a national Parliament the power to bring action before the CJEU is now Art. 88-6.2 of the French Constitution, as amended by Constitutional Act No. 2008-103 of 4 February 2008,¹⁹² according to which each of the two Chambers of the French Parliament can bring an action against a European legislative act to the CJEU for infringement of the principle of subsidiarity and such action is transmitted to the CJEU by the French Government. In principle the Government has a margin of appreciation, but, if 60 MPs or 60 senators so require, the Government is legally obliged to submit the action to the Court (“le recours est de droit”).¹⁹³

In Austria the Lissabon Begleitnovelle of July 2010 has introduced in the Constitution an Art. 23h, that goes in the same direction.

A different perspective is adopted by Art. 23.1 sentence 2 of the German Basic Law, as amended in the process of ratification of the Treaty of Lisbon. In this case, the action is brought before the Court by the Government, on the base of a request adopted by the lower or by the upper Chamber of the Parliament. In the case of the lower Chamber, when one fourth of its members propose a motion requesting to bring the action to the Court of Justice, the lower Chamber is constitutionally obliged to adopt it: it is therefore structured as a right of a qualified parliamentary minority.¹⁹⁴

The existence of a formal deliberation of the Chamber fully satisfies the requirements established by Art. 8 of Protocol No. 2, that foresees a request of the Parliament or of one Chamber (and therefore of a majority of it).¹⁹⁵

A third solution has been adopted in Spain, where the power to propose, on behalf of Parliament, an action before the CJEU for infringement of the principle of subsidiarity has been structurally delegated to the Joint Committee on the European Union (Comisión Mixta para la Unión Europea).¹⁹⁶ But a role of “filter” is recognised to the national Government, giving him a margin of appreciation on the decision of the Parliament: the Government can decide not to interpose the action asked by the Committee. In that case, the Government must state the reasons for its decision and must justify it in front of the Committee, when this so requires.

9 Other Functions Aimed at Protecting National Prerogatives

9.1 Veto Powers

Besides this general form of participation aimed at protecting the MS’ competences, the Treaty of Lisbon formally recognises to national Parliaments some powers of participation in specific areas, when the Treaties foresee mechanisms that allow to enlarge the areas of competences of the Union or to widen the fields where a decision can be taken with a method different from unanimity.

The most interesting procedure is foreseen by the general “passerelle clause” of Art. 48.7 TEU (former Art. IV-444 TCE¹⁹⁷). This procedure enables the European Council to adopt by unanimity a decision authorising the Council to act by a qualified majority in an area or in a case for which Title V of the TEU or the TFEU require the rule of unanimity: this procedure allows to extend the range of application of the ordinary legislative procedure, replacing some special legislative procedures foreseen for the adoption of legislative acts. The decision of the Council must be notified to national Parliaments and in case of the opposition of one national Parliament the decision shall not be adopted (→ Art. 48 para 47–54; → Protocol No. 1 para 89–102).

The power of national Parliaments to oppose¹⁹⁸ the enlargement of the fields in which it would be possible to decide with a qualified majority is an evolution of one of their original functions, the one that has been called of “ratification” (→ para 4). But the veto mechanism is based on the idea that, from the perspective of the European law, what is sufficient to allow the adoption of the decision of the Council is the simple absence of a contrary deliberation of a national Parliament: therefore—differently from the ratification procedures—the consent of national Parliaments is not required and the old principle qui tacet consentire videtur si loqui debuisset ac potuisset does apply.

This mechanism has been regarded as insufficient by the German Constitutional Court in its decision on the constitutionality of the Treaty of Lisbon: the Court has required that, for the German consent to be validly given from the point of view of German constitutional law, the decision of the Council must be positively approved by the German Parliament with a law (and—when required by German constitutional rules—also by the German Federal Council),¹⁹⁹ thus transforming the veto power in a reserve of legislation.²⁰⁰

A similar solution has been adopted by the European Union Act 2011 in the United Kingdom and by Art. 23i of the Austrian Constitution, introduced by the Lissabon Begleitnovelle of July 2010: in the case of use of the “passerelle clause”, the Austrian Federal Government is obliged to require the authorisation of the two Chambers with a majority of two thirds of the MPs who participate to the vote (provided that the participants are at least half of the members of each Chamber) in each of them before voting for it.²⁰¹

This role recognised by Art. 48.7 TEU to national Parliaments is very similar to the one mentioned in Art. 81.3 TFEU (special passerelle clause), according to which each national Parliament is endowed with a veto power in relation to a decision of the Council “determining those aspects of family law with cross-bor der implications which may be the subject of acts adopted by the ordinary legislative procedure” instead of that with a special legislative procedure. Not only the decision to change the procedure must be adopted by the Council unanimously, but national Parliaments must be informed of such decision and they have a delay of 6 months to oppose it. If one national Parliament does oppose it, the decision is not adopted. It is not clear what happens if only one of the two Chambers composing a national Parliament opposes this decision, and if the position of one of the two Chambers in favour of the European decision has the power to block the veto power of each national Parliament.

Art. 48.7 TEU and Art. 81.3 TFEU literally require the opposition of “a national Parliament”: a literal interpretation of these provisions seems to lead to the consequence that, when the Parliament is composed of two Chambers, the opposition, to be validly expressed according to the Treaties, should be expressed by both Chambers.²⁰² This interpretation could have the paradoxical consequence that the opposition of a popularly elected lower Chamber, without the consent on it of a non-elected upper Chamber (the extreme case could be that of the House of Lords in the UK) would not satisfy the requirement established by Art. 48.7 TEU and Art. 81.3 TFEU to block the use of the “passerelle clause”. A teleological interpretation, on the other hand, moving from the purpose of the abovementioned provision, that protects the position of MS as defined by their elected representatives (and, therefore, the principles of democracy and of subsidiarity) could lead to support the thesis that the opposition to the use of a “passerelle clause” from a popularly elected Chamber has in itself the legal force of blocking the use of it.²⁰³

Other special “passerelle” clauses are regulated by the Treaty, but in those cases national Parliaments do not have a right to be previously informed, nor do they enjoy the right to veto the decision²⁰⁴: this happens in some cases concerning the Union’s social (Art. 153.2 TFEU) and environmental policies (Art. 192.2 TFEU), in the AFSJ (Art. 82 TFEU), of intellectual pro perty (Art. 262TFEU) and in the adoption of the Union’s multiannual financial framework (Art. 312.2 TFEU).

In the case of the “flexibility clause ” (Art. 352 TFEU, former Art. 308 EC) the veto power of national Parliaments is not foreseen, but the duty of the Commission to “draw national Parliaments’ attention to proposals based on” it is specifically recalled. In this case, the Treaty relies implicitly on the national function of national Parliaments: i.e. to legitimise, influence and direct their Governments, who have a veto power, given the fact that the Council must act unanimously. The German Constitutional Court has considered not sufficient the duty of the Commission to inform national Parliaments and has required that, in the German legal system, the German representative in the Council cannot formally give the consent to the use of the flexibility clause without the ratification by the two chambers of the German Parliament.²⁰⁵

9.2 Participation to the Revision of Treaties

An important power of participation of national Parliaments is foreseen by Art. 48 TEU (a reformulation of Art. IV-443 TCE; → Art. 48 para 32) in the ordinary procedure for the amendment of the Treaties. This ordinary procedure is characterised by the elaboration of the amendment by 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”, according to the experience of the Conventions on the Charter of Fundamental Rights (1999–2000) and on the Future of Europe (2002–2003).

The measure of the representation of national Parliaments is not defined by the TEU. The importance of this representation is diminished from the fact that the Convention procedure can be avoided, in favour of the direct recourse to a Conference of the representatives of the Governments of MS, if the European Council (with a decision adopted with a simple majority and the consent of the EP) so decides, when “to convene a Convention” is not justified “by the extent of the proposed amendments”. The choice seems to be a political question: it is difficult to imagine the nullity of a modification of the Treaties decided with a simplified procedure when the “extent”²⁰⁶ of the modification should have suggested calling a Convention.

Furthermore, the role of national Parliaments is limited also from other points of view: they do not have a power of initiate a revision of the Treaties, they are represented in the Convention by a small number of their members and the amendment elaborated by the Convention is only a proposal, the decision being reserved to the IGC.²⁰⁷

10 Functions Corresponding to “Classic” Parliamentary Control

The former second and third Pillars of the EU have traditionally been sensitive areas of the democratic deficit, given the reduced powers of the EP in these fields. While the Treaty of Lisbon has tried to open new perspectives of parliamentary control²⁰⁸ in the AFSJ (→ para 79–84), it left the CFSP only to the development of interparliamentary cooperation (→ para 85–87). More recent developments have added the economic governance as an emerging field for control by national Parliaments (→ para 88–92).

10.1 Parliamentary Control in the AFSJ

Art. 12 TEU outlines a specifi c role for national Parliaments within the framework of the AFSJ,²⁰⁹ articulating it in three aspects, one more general and two sectoral: the participation to “the evaluation mechanisms for the implementation of Union policies in that area” and the involvement in the control both of Eurojust and Europol. Before the entry in force of the Treaty of Lisbon—and also after it, pending the implementation of Art. 85 and 88 TFEU—Eurojust and Europol were accountable to the Council of Ministers for Justice and Home Affairs.

Council Decision 2009/371/JHA of 6 April 2009,²¹⁰ adopted under Title VI of the TEU (before the entry in force of the Treaty of Lisbon), established Europol as a European Agency. It has introduced a control of the EP in Art. 48, that can be activated on request of Parliament “taking into account the obligations of discretion and confidentiality”. At the same time, notwithstanding the pending of the ratification of the Treaty of Lisbon, the Europol Council decision has ignored national Parliaments: “replacing the Europol Convention with the Europol Council decision has reduced the power of National Parliaments to control the development of Europol. Moreover, any reference to the role of national Parliaments (Art. 34.3 of Europol Convention) has disappeared in the Europol Council decision”.²¹¹ Concerning Eurojust, the Council Decision 2009/426/JHA²¹² reforming Eurojust, foresees only duties to inform the EP, not national Parliaments.

The rules laid down by the Treaty about MS’ Parliaments role in this area are basically instrumental: they empower further sources of law to regulate the subject.

Art. 70 TFEU foresees that national Parliaments and the EP will be informed of “the content and results of the evaluation” of the implementation by the MS authorities of the Union policies in the AFSJ. That evaluation will be regulated by a “measure” adopted by the Council on the base of a proposal of the Commission.

Art. 85 and 88 TFEU empower a regulation²¹³ to define the forms of the control on the two organisations by the EP, to which national Parliaments are associated.

The form of this control remains largely undetermined at the moment, and it will be defined by the measure mentioned by Art. 70 TFEU and by the EU regulation foreseen by Art. 85 and 88 TFEU.²¹⁴

These Articles include only an authorisation to the EU regulation to establish the forms of such control, and use different words to define it in general: “information” of “the content and results of the evaluation” for the control of MS authorities in implementing the EU policies; “evaluation” for Eurojust (Art. 12 lit. c TEU and Art. 85.1 TFEU) and “political monitoring” (Art. 12 lit. c TEU) and “scrutiny” for Europol (Art. 88 TFEU).²¹⁵

In the first case only an information right seems to have been foreseen by Art. 70 TFEU, thus reducing the importance of the activity mentioned in Art. 12 lit. c TEU, where it is spoken of “taking part […] in the evaluation mechanisms”, and therefore of an active and not of a merely passive role for MS’ Parliaments.

Concerning Eurojust and Europol, the form of oversight of the latter seems to be more intensive than that of the former, but the difference is not clear.²¹⁶ Also other profiles remain unclear, such as the subjects actually involved for a national Parliament (probably each Chamber of it), the forms of coordination between national Parliaments and the EP and—above all—the general purpose of this control, moving from the basic fact that is should be some form of ex post parliamentary oversight.

A communication of the Commission seems to choose for Europol an interrelated form of control, exercised by a joint body: “An interparliamentary forum could consist of both the national Parliaments' and the EP’s committees responsible for police matters. This joint body could meet at regular intervals and invite the Director of Europol to discuss questions relating to the agency’s work”.²¹⁷

In both cases, the weak element of this form of control seems to be the absence of a possible sanction at the end of the control activity of a single national Parliament: it is not plausible to recognise a sanction power to a single Parliament and a sanction decided by the joint body has not been foreseen.

According to Art. 71 TFEU, national Parliaments as well as the EP are informed of the activities of the Standing Committee “set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union”.

In this case there is no proper Union activity—not even in the special (intergovernmental) form that is the general rule under the former Third Pillar—but just a form of cooperation between MS that the Treaty tries to channel through a Standing Committee of the Council (that inherits the role of the Committee foreseen by Art. 36 TEU). The Standing Committee on Internal Security has operational coordination tasks and not legislative powers. Art. 71 TFEU, ensuring that national Parliaments are kept informed of the activity of this Committee, aims to allow them to exercise effectively their control powers.²¹⁸ Ingolf Pernice has correctly seen in this mechanism—as well as in the interparliamentary cooperation—a horizontal dimension of multilevel constitutionalism.²¹⁹ According to Art. 6.2 of Decision 2010/131/EU²²⁰ “[t]he Council shall keep informed the European Parliament and the national Parliaments of the proceedings of the Standing Committee”.

10.2 Parliamentary Control of CFSP

It must be remark ed that national Parliaments, though involved in the control on the activity of the Union in the AFSJ (the former third pillar), remain totally outside of the former second pillar, now the CFSP,²²¹ at least from the point of view of European law, who does not mention them in this area.

In this field also the EP plays a marginal role and the power is concentrated in the European Council and in the Council²²²: the control on the CSDP agenda, the approval of the budget in this field (introduced by the Treaty of Amsterdam²²³), the control on civil activity in this framework, and the control on the HR.

On the other side while no express role is foreseen by the Treaties for national Parliaments,²²⁴ they do actually exercise a major role in controlling the decisions of their Governments, especially where the employment of troops is necessary. This of course depends purely on national constitutional reasons and principles: where—like in Germany—the parliamentarisation of the use of the army outside the national territory is absolute, national Parliaments play a major role, fully legitimising the action taken by the single national government in the framework of the CFSP. But of course there are variations on this theme, depending from national equilibriums.

The Treaties do not foresee a coordination of the functions of national Parliaments and of the EP in this area of strategic importance: the Protocol on national Parliaments now seeks to stimulate a role of the COSAC in CSDP. In the framework of this cooperation, an indirect role of the EP in the organisation of interparliamentary conferences on the CFSP is thus opened.²²⁵ The recent conference of the Speakers held in Brussels in 2011 and in Warsaw in 2012 have set up an Inter-Parliamentary Conference for the CFSP and the CSDP.²²⁶

10.3 National Parliaments and Economic Governance

The crisis of the global economy after 2008, and specially the crisis of the Euro-zone after 2010, have highlighted the democratic deficit existing also within the EMU. Also this field is governed by specific rules,²²⁷ slightly different from the supranational system: the Commission does not have the monopoly of initiative; the EP does not have codecision power, but only the right to be consulted and in some cases only to be informed ex post; very important powers are recognized to the ECB and, above all, the Council plays a central role.

In the context of these procedures, whose character is strongly intergovernmental, with relevant constrictive powers further limiting MS autonomy, the Treaty of Lisbon did not foresee any role for national Parliaments, but the constitutional crucible generated by the Euro-crisis has opened some avenues for their involvement.

The first interesting element is the Europe 2020 Strategy,²²⁸ aimed to face the economic and financial crisis and to build a framework for sustainable growth and for the increase of employment in the EU. Through that strategy, a huge transfer of powers from the MS to the European level has been put in motion, especially through the coordination of MS’ fiscal policies and through the obligation to discuss and condition in advance, at a European level, the adoption of structural reforms.²²⁹ The Strategy Europe 2020 has been implemented through a series of acts, that compose together the so called “Six-pack” (five regulations²³⁰ and a directive,²³¹ who entered in force on 13 December 2011). These acts require, in many provisions, that national Parliaments shall be involved in a closer and more timely form in the economic governance,²³² that in applying the Regulation on the prevention and correction of macroeconomic imbalances the role of national Parliaments shall be fully respected²³³ and that, “in line with the legal and political arrangements of each Member State, national Parliaments should be duly involved in the European Semester and in the preparation of stability programs, convergence programs and national reform programs in order to increase the transparency and ownership of, and accountability for the decisions taken”.²³⁴ According to Regulation No. 1175/2011—that comprehensively reformed Reg. No. 1466/1997 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies—the stability programme that each MS has to submit to the Council and to the European Commission “shall include information on its status in the context of national procedures, in particular whether the programme was presented to the national Parliament, and whether the national Parliament had the opportunity to discuss the Council's opinion on the previous programme or, if relevant, any recommendation or warning, and whether there has been parliamentary approval of the programme”.²³⁵ The participation of national Parliaments to the decision-making process on economic and financial governance is aimed to compensate with a supplement of democracy the increase of powers at European level.²³⁶

Finally, the Report “Towards a genuine economic and monetary union”, submitted by President of the European Council Herman Van Rompuy to the European Council of 28/29 June 2011 remarks that “moving towards more integrated fiscal and economic decision-making between countries will […] require strong mechanisms for legitimate and accountable joint decision-making” and that “close involvement of the European parliament and national Parliaments will be central, in the respect of the community method. Protocol 1 TFEU on the role of national Parliaments in the EU offers an appropriate framework for inter-parliamentary cooperation”.²³⁷

Secondly, the role of national Parliaments is frequently underlined as essential in some judicial decisions of the German Federal Constitutional Court. With a first decision, adopted on 7 September 2011, the Court found that the approval by the German lower Chamber was necessary for financial support measures of great entity,²³⁸ because of the responsibility of Parliament for budget decision, rooted in the democratic principle of the German fundamental law.²³⁹ With a second decision, adopted on 28 February 2012 the Court underlined that such measures (to be adopted, in that case, in the frame work of the European Financial Stability Facility [EFSF]) require the approval from the plenum of the lower Chamber of the German Parliament, and not simply of an internal committee, as originally foreseen by the German law.²⁴⁰ Also in this second decision, the German Constitutional Court based its arguments on the democratic principle, besides various specific provisions.²⁴¹ The reasoning of the Court based in Karlsruhe is actually justified by the intergovernmental nature of some mechanisms, like the EFSF, that are not submitted to the control of the EP, with the consequence that a control by each national Parliament is required in the perspective of Art. 10.2 TEU.²⁴² On the other side, at least from the point of view of a foreign observer, some practical consequences of this principle in the decision of 28 February 2012 appear less uncontroversial: the need of an approval by the plenum, justified in the perspective of German constitutional law as it may be, appears rather odd in the perspective of the constitutional law of MS concerning the Union, where the most important control functions of national Parliaments are actually delegated, in various forms, to internal committees (→ para 15, 104).

Last, but not least, the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (→ Protocol No. 1 para 145), signed in Brussels on 3 March 2012 by 25 of the 27 MS and currently submitted to the ratification process, foresees now that “as provided for in Title II of Protocol (No 1) […], the European Parliament and the national Parliaments of the Contracting Parties will together determine the organisation and promotion of a conference of representatives of the relevant committees of the European Parliament and representatives of the relevant committees of national Parliaments in order to discuss budgetary policies and other issues covered by this Treaty”. This provision opens the way to a development of the cooperation of parliamentary committees that in the future could run parallel to that centered on COSAC or be integrated in the COSAC system, retaking a suggestion that emerged in the Group IV of the Convention on the Future of Europe, in favor of the development of the cooperation not only between the Commissions on European affairs, but also between other sectoral commissions.²⁴³

11 Cooperative Functions of National Parliaments

The Treaty of Lisbon expressly acknowledges the importance of cooperation between Parliaments.

Interparliamentary cooperation is not specific of the EU, but it is a more general phenomenon, that can take shape in many different forms: bilateral and multilateral; based on agreement for (more or less) specific activities or giving birth to interparliamentary organs; contingent or permanent; etc. The most structured forms of interparliamentary cooperation is the (already traditional) Interparliamentary Union and, more recently, the parliamentary structures in some international organisations (the Parliamentary Assemblies of NATO , OSCE, WEU and Euro-mediterranean partnership²⁴⁴).

In abstract, in a multilevel legal system like the EU, it is possible to distinguish a vertical and a horizontal cooperation: the vertical cooperation takes place between the EP and national Parliaments, while the horizontal cooperation has mainly national Parliaments as its parts. But in the practical working of interparliamentary cooperation in the EU the two phenomena are intertwined, and the EP plays de facto a leading role in the cooperation between Parliaments: the EP is actually the barycentre of interparliamentary cooperation (→ Protocol No. 1 para 120–125).²⁴⁵

The Treaty of Lisbon does not recognise a formal status in EU primary law to the “vertical cooperation” as an autonomous phenomenon. A form of it is foreseen by Art. 130 of the EP’s Rules of Procedure (Exchange of information, contacts and reciprocal facilities), recently modified.²⁴⁶ In the practice, cooperation between the EP and national Parliaments takes place through various mechanisms: contacts between Committees, information visits from members of national Parliaments in Brussels, relations with political groups in the EP, national Parliaments’ representations in Brussels, the Conventions on the Charter of Fundamental Rights and on the Future of Europe.²⁴⁷

The Treaty, on the other side, gives specific recognition to the horizontal parliamentary cooperation, putting at the centre of this phenomenon the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC) (→ Protocol No. 1 para 149–176). Furthermore, in this regard, it has to be mentioned Art. 13 of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG), signed by 25 MS on 2 March 2012, which tries to address the issue of the Euro-national parliamentary scrutiny over financial matters. It provides for “a conference of representatives of the relevant committees of the national Parliaments and representatives of the relevant committees of the EP in order to discuss budgetary policies and other issues covered by this Treaty” (→ Protocol No. 1 para 145-146)

These forms of cooperation “puts together horizontally and vertically the political elites of the Union and of the MS. They generate a mutual understanding and the emerging league or union of Parliaments (Parlamentsverbund) becomes a democratic counterpower in front of the Executive power in the Union”.²⁴⁸

12 Short Remarks on National (Constitutional and Statutory) Provisions

In general, the role of national Parliaments on the base of the information that they receive is not limited to the control on the respect of the principle of subsidiarity or to the participation to the various functions mentioned in Art. 12 TEU, but is instrumental to express their position on the content of the draft of European act. This evaluation shall be channelled through the national “portion” of the EU decision process and each national Parliament will have to try to influence the official position of his government in the Council, thus “legitimising” it, and, through it, the Council’s decision. The base of this role is the general principle stated in Art. 10.2 TEU, according to which the Heads of State and Government sitting in the European Council and the Governments sitting in the Council are “democratically accountable either to their national Parliaments, or to their citizens”. But this national “portion” of national Parliaments role is of course highly relevant for the EU decision-making process: when they “do not only legitimize, but also control, their respective ministers in the Council—or Heads of State and Government in the European Council—and in this role they are actors of the EU and bear important European responsibilities”.²⁴⁹

Therefore, to have a complete picture of the role of national Parliaments in the EU it would be of course necessary to analyse, besides the rules of European law, both the legal provisions (constitutional and subconstitutional), the practices and the political culture at the national level.²⁵⁰ Only this kind of bottom-up analysis—that cannot be developed here in detail—would allow to understand the role of each national Parliament and of the national Parliaments as a whole and of their ability to use the new powers foreseen by the Treaty of Lisbon and, more generally, to perform the function of controlling the European policy of their governments, thus making effective this second channel of a European Democracy.

From this point of view, the Treaties are an “incomplete” constitution of Europe and the substantial “Constitution” of the EU is completed at the national level by the provisions concerning the Union included in national Constitutions: the role of national Parliaments in the European decision-making process is regulated both at European and at national level. Here the concept of “multilevel constitutionalism”—often evoked merely as a descriptive image—can be used in its technical meaning: national and European laws, and national and European authorities (Parliaments, in this case) are “complementary elements of one system” and “are in permanent interdependency”.²⁵¹

This is confirmed by Protocol No. 1, that begins with the explicit recognition that “the way in which national Parliaments scrutinise their governments in relation to the activities of the Union is a matter for the particular constitutional organisation and practice of each Member State”. Constitutional autonomy, after all, is itself a basic structural feature of the EU.²⁵²

In a historical perspective, it has been convincingly argued by Philip Norton that the adaptation of national Parliaments to European integration happened through three stages.

In the first stage, from the foundation of the Communities to the 1970s, “there was limited or no involvement” of national Parliaments in the European decision-making process. “Most chambers of the legislatures of the original six Member States did not modify significantly their structures or procedures in response to the moves towards European integration”.²⁵³

In the second stage—starting with the accession to the European Communities of Denmark, Ireland and the UK in 1973 and developing as a reaction to the White Paper on the Completion of the Single Market in the 1980s—a process of adaptation to changing developments within the Communities took place, both because of the mix of euroscepticism and of strong national parliamentary traditions in Denmark and in the UK and because of the widening of the European legislation for the completion of the Single Market.²⁵⁴ “The result has been that, in the field of EC affairs, national Parliaments have exhibited, from the mid 1980s onwards, three distinct characteristics: (i) greater specialisation [through the creation of Committees devoted to European affairs], (ii) greater activity, and (iii) some attempts to integrate MEPs into their activities”.²⁵⁵

“The third stage of development is one in which national Parliaments are viewed as important means of addressing the democratic deficit within the Union”.²⁵⁶ The “participation of Parliaments to the adoption of community decisions is a common principle diffused and rooted” in MS’ legal orders.²⁵⁷

Comparing national Constitutions and other legal (and sometimes also non legal) sources that implement and develop them, it is possible to see the consolidation of a “constitutional law of integration” (droit constitutionnel de l’intégration)²⁵⁸ or of a “Union constitutional Law of Member States” (“Staatliches Unionsverfassungsrecht”)²⁵⁹ as that aspect of the “Europeanization of national Constitutions”²⁶⁰ that regulates the forms in which the various organs of the MS take part to the definition of the national positions in the adoption of European acts.

The “constitutional law of integration” also defines the forms through which national Parliaments exercise that “responsibility for integration” (Integrationsverantwortung ) that, according to the German Federal Constitutional Court, belongs to the German Parliament,²⁶¹ but that it is possible to say it belongs to all national Parliaments both from the perspective of Art. 10 and 12 TEU and from a national Constitutional law perspective. Also from this perspective it is in fact possible to infer the existence of such a responsibility, moving from the option to take part to the process of European integration—expressly stated in many Constitutions²⁶²—and from the role that is recognised to a Parliament in a representative democracy (and that is confirmed by various constitutional or legal rules in relation to the participation to European integration).

In this comment it is possible only to make some general remarks. First of all, Parliaments have kept their original functions of implementation (for example in the case of non-self-executing EU directives), ratification (as in the case of enlargement Treaties) and—above all—accountability. This latter function is practically the most important, given the constraints on the freedom of Parliaments in the first and in the second of its original functions (→ para 4). It is grounded in a general constitutional guiding principle that drives the role of national Parliaments in controlling their Governments in EU affairs: the principle of ministerial responsibility that is common to MS and is expressly recalled by Art. 10.2 TEU (→ Art. 10 para 7–29). In the majority of cases ministerial responsibility is placed in the context of a relation of confidence between Government and Parliament.²⁶³ This principle is the base that justifies and allows the ex ante and the ex post control and many limits of the said control are consequences of the shortcomings of that principle.²⁶⁴

Secondly, the two main instruments of control—both connected to the principle of ministerial responsibility—are the right of Parliament to receive information ²⁶⁵ from the Government (both about the documents on which a certain European decision will have to be taken²⁶⁶ and about the negotiation position of the Government) and the right of Parliament to state its position (Stellungnahmerecht).²⁶⁷

Thirdly, almost all the forms of Parliamentary control of EU affairs are exercised through Parliamentary (single-Chamber or joint) Committees, to whom the Constitution,²⁶⁸ the ordinary law or the regulations of the Chambers have conferred this task. From this point of view, it is possible to introduce various distinctions.

The first is between a “centralised” type of control, in which the EU affairs committee plays the leading role, and a “decentralised” type of control where the main role is given to the sectoral Committees. The Finnish system,²⁶⁹ trying to combine decentralised and centralised element,²⁷⁰ lies for some aspects in the middle and has a reputation of high efficiency.

A second distinction concerns the degree of selection of the EU documents actually analysed by the Committees in the “maremagnum” of the EU documentation.

The third—and for many reasons the most interesting—concerns the degree of obligation deriving from the “mandate” given to the government by the Committee, with the Austrian²⁷¹ and the Danish²⁷² EU Affairs Committees playing the strongest role.

While some Parliaments focus their attempt to influence the position of the Government on a mandate-based system, other Parliaments are more focused on a “document-based system” that is structured around the examination of the draft European acts that are transmitted to the national Parliament or to one of its Committees. In this system it is sometimes possible for Parliament to place a “reserve of scrutiny”,²⁷³ which provides that Ministers should not agree to proposals in the Council until parliamentary scrutiny has been completed. Originally introduced in the British House of Commons after the accession of the United Kingdom to the EC in 1973, this system has been later adopted also in France (1994) and in Italy (2005).²⁷⁴

13 Conclusions

The upgrading of national Parliaments and their elevation to direct actors in the European Constitutional architecture²⁷⁵ was a clear and explicit choice of the European Constitutional season of 2002–2005 that has been confirmed and further enhanced by the Treaty of Lisbon. This is for the moment the point of arrival of an evolutionary process that has seen a progressive growth of the role of national Parliaments both through the evolution of the “Union constitutional Law of Member States” and through successive revisions of the Treaties.²⁷⁶ This double—national and European—evolutionary process can be summed up with the subtitle of a recent book on this subject, that underlines the change of position of national Parliaments “from victims of integration to competitive actors”²⁷⁷ or even—according to some (maybe too optimistic) opinions—to the “great winners” of the reform achieved with the Treaty of Lisbon.²⁷⁸

The choice of “investing” in the “resource” represented by national Parliaments is one of many elements that distinguish the European polity from the federal States, whose traditions do not show a similar role for MS’ Parliaments.

The formal importance of the “original functions” of national Parliaments in the European Communities (ratification, implementation, accountability) has been sharply reduced by the way in which the Communities—and later the Union—worked. Some of the functions of national Parliaments examined in this comment may be actually regarded as attempts to revitalise those original functions: it seems to be the case of the power to participate to the revision of the Treaties (Art. 12 lit. d TEU), of the information of applications for new accessions (Art. 12 lit. e TEU) and of the veto powers in front of the use of the “passerelle clauses” (Art. 48.7 TEU), that can be seen in connection with the “ratification” function. The strengthened information rights (Art. 12 lit. a TEU) can also be seen as a device to remove the obstacles to the actual exercise of the “accountability” function. “Updating” these original functions could be seen as a consequence of the adaptation of the role of national Parliaments of an international organisation to that required in a “close long-term association of States which remain sovereign” (→ para 18).

It is more difficult to place in this perspective some other functions of national Parliaments. Also the early warning system could be seen as a development of the “ratification” function (i.e. recognising to Parliaments the role of watchdogs in the use of shared competences, and therefore controlling the “dynamic” element of the division of competences built in the Treaties), but the comparison—based on the common element represented by the protection of the position of MS that both the ratification functions and the early warning system are expected to serve—would go too far in this case: the early warning system is a protection within the exercise of powers that the Treaties have already recognised to the Union, not against a modification of the Treaties.

On the whole, national Parliaments have been endowed with powers that make of them supplementary watchdogs of national prerogatives, using “soft constitutional solutions” (instead of “hard” ones)²⁷⁹ in order to avoid a further complication of the (already complex) EU decision-making process. The actual exercise of these tasks will require political will²⁸⁰ and a change of mind by national politicians and it will have to be verified in the practice.²⁸¹

The question, asked by some observers, about the possibility that national Parliaments could go beyond that (mainly “negative” and protective) role and become real actors of the legislative procedure of the Union²⁸² or a “constituent part of the multilevel European institutional system”²⁸³ able to influence the content of the choices as a sort of “diffused” second Chamber ²⁸⁴ is even harder to answer. The first phrase of Art. 12 TEU could actually be seen as the base for some sort of “implied powers” of the Parliaments of MS that go beyond the list of specific powers recognised to them in the abovementioned “protective” role. Here lies all the discourse about the association of national Parliaments to the “democratic governance” of the Union and about a new form of democracy, of transnational type, at the European level²⁸⁵: if it can be considered true that the provisions of the Treaty of Lisbon are “aimed at strengthening National Parliaments as a basis for strengthening the democratic legitimacy of the Union”²⁸⁶ it is not clear if this enhanced strength will be directed only towards a stronger legitimacy of the Union in the “negative” sense of protecting MS’ competences,²⁸⁷ checking its excessive interventions in the area of shared competences through the control on the respect of the principle of subsidiarity, or will be also able to increase in a “positive” sense (and not only in a protective sense) the legitimacy of the EU decision making process.

Clearly national Parliaments have acquired a role that is formally independent from that of their governments and are potentially direct interlocutors of the institutions of the Union,²⁸⁸ going beyond their traditional role of legitimising actors of the choices made by their respective “executive powers”. But the instruments that they can use at the moment to become active players in the Union architecture are still in an “embryonic” phase: the interparliamentary cooperation through the COSAC, the control in the AFSJ, the possibility to submit opinions to all European authorities, while the Treaty has not recognised to them formal powers of solicitation of the initiative of the Commission like those conferred to one million of electors by Art. 11.4 TEU.²⁸⁹

For the moment, the initial statement of Art. 12 TEU and the active—and not merely reactive—role that it seems to recognise to national Parliaments may be regarded as an enigmatic promise.