The year 2019 does not only mark a compositional change of the European legislative lower-chamber and executive. On December 13th, ten years ago, the Treaty of Lisbon entered into force, thus introducing many changes in the European landscape. Amongst the major ones was the setting up of a new regime of legislative control involving national parliaments: the Early Warning Mechanism. The present reflection aims at providing some insights about the current framework of parliamentary control of subsidiarity while also considering its future developments.
For a long time, national parliaments felt excluded from European decision-making. The gradual transfer of competences from the national to the European level sidelined domestic legislators to the status of “losers of European integration”. This status also translated into a loss of control over the actions of their ministers in the Council with the introduction of qualified majority voting through which ministers could be outvoted. At a certain point, it became clear that national parliaments had to adapt if they wanted to stay in the game. This adaptation was carried out slowly and in several ways. For example, they tried to increasingly influence their governments by giving them clearer and more specific mandates and by scrutinising more closely their actions at European level. The limits of those methods were however rapidly met as national parliaments only had the possibility to influence the European decision-making indirectly. Upon the impetus of national parliaments and in the view of integrating a democratic input, the Lisbon Treaty introduced a new form of direct influence for parliaments over the European decision-making process: the Early Warning Mechanism. This new mechanism allows national parliaments to have a say in the application of the principle of subsidiarity, according to which the EU, in the areas where it does not have exclusive competence, can act only if the sought objectives can be better achieved at Union level. The underlying idea is that parliaments can send reasoned opinions on legislative draft proposals issued by the Commission to make sure that subsidiarity is observed.
Procedurally speaking, each parliament has two votes (divided between the two chambers if bicameral). In the case where a proposal reportedly violates the principle of subsidiarity, national parliaments may issue a reasoned opinion to the Commission. In the first of the two arms of the Early Warning Mechanism or the yellow-card procedure, 1/3 of the votes are enough to trigger the process (1/4 when it concerns the Area of Freedom, Security and Justice). In that case, the Commission needs to justify its proposal although it may still maintain it. The second arm or the orange-card procedure, on the other hand, requires a simple majority of the votes to be triggered. In that case, the Commission may still maintain the proposal but needs to provide an extra-reasoned opinion with a possibility for either the European Parliament or the Council to scrap the proposal with, respectively, simple majority and 55% votes.
The yellow-card and orange-card procedures: Why do they not work?
So far, only the yellow-card procedure has been used, three times, while the orange-card procedure has never been used at all. Why would national parliaments not frequently use those procedures if they want to gain more influence at the European level? First, because the procedure is difficult to trigger. Indeed, parliaments only have 8 weeks after the issuance of the Commission proposal to send a reasoned opinion. This is complicated as they do not all have the time or expertise to deal with European Union (EU) affairs. The second problem relates to the collective character that such a procedure entails. Indeed, one national parliament cannot do anything on its own. Thus, 8 weeks is very short and leave limited room for coordination. This is even truer where national parliaments must coordinate to issue an opinion on the exact same proposal to be able to have any concrete effect on the decision-making.
How to improve subsidiarity control procedure by national parliaments?
In a 2017 report adopted in a Resolution, Mercedes Bresso (S&D) and Elmar Brok (EPP) stressed the importance of subsidiarity control by national parliaments and suggested flexibility as to the 8 weeks period after the issuance of the Commission proposal jointly with a strengthening of the cooperation between parliamentary chambers. Such a solution may easily be implemented, as this would not require any Treaty change but only an agreement with the Commission. In turn, the endorsement of the new Commission may constitute an opportunity to increase parliamentary involvement in EU affairs. Even though President-elect von der Leyen did not mention national parliaments at all in her political guidelines, giving them more possibilities to rely on the Early Warning Mechanism is in line with her project to make the EU more democratic and may definitely improve the relationship between the Commission and domestic legislators.
Would the red-card be a solution to increase parliamentary involvement at EU level?
After the introduction of the so-called yellow-card and orange-card procedures at Lisbon, many viewers foresaw the greater involvement of national parliaments in European processes as a way to foster democracy and legitimacy. This was of paramount importance in a context where the ashes of the financial crisis were still smoldering and the EU was seen as a technocratic organisation far away from its citizens.
On 10 November 2015, David Cameron, former UK Prime Minister sent a letter to former European Council President Donald Tusk in which Cameron proposed the setting-up of a red card. This card would allow national parliaments, if acting together, to veto proposals at European level and thus strengthen democracy in the EU. The European Parliament obviously stood firmly against such a proposal, fearing the rise of a third chamber of the European legislature. It argued that the invisible boundary between its competences and those of national parliaments should not be crossed and that parliaments have better possibilities to influence the European level through their national governments indirectly.
In terms of impact, it was argued that a red card would not be a solution. Indeed, if such a card was to be adopted, the threshold should be higher than the yellow and orange cards. Experience showed that even for the orange-card procedure, the threshold could not be met. So, how could a threshold higher than the orange card procedure be met if lower thresholds cannot yet be reached? In addition, if such a number of parliaments was against a certain proposal, it would anyway be rejected in the Council at a later stage. This argument was further underlined by the Council, who promised that if 31 votes (55%) are cast by national parliaments in the Early Warning Mechanism, it would discontinue the process.
Introducing a green-card to ensure the input of national parliament in European decision-making?
The Conference of Parliamentary Committees for Union Affairs of Parliaments of the EU (COSAC) is a conference to which the European Parliament and all national parliaments are invited. They meet twice a year to exchange information and best practices. In such a framework was developed the idea of a green-card. Such a card would allow, if national parliaments are acting together, to suggest proposals at the European Commission.
Even though nothing is laid down in the Treaties, nothing prevents the Commission to take into account national parliaments’ suggestions of proposals. Those suggestions had already been used by the Commission in 2015 when the UK House of Lords along with 15 other national parliamentary chambers suggested a green-card on reducing food waste. However, this is not automatic as similar suggestions were simply dismissed. It is to be noted that the Commission is careful in taking into account green-cards as it would not want it to amount to a de facto right of initiative of national parliaments. Having promised the European Parliament a right of initiative, von der Leyen would probably not risk to endanger her relationship with MEPs by providing a similar right to domestic parliaments.
In any case, as pointed out several times, and as advocated by Guy Verhofstadt, a green-card is in line with the significant role played by national parliaments in the current institutional order of the EU, especially when it comes to the transposition of European legislation in domestic law. Unlike the red-card which, according to Agata Gostyńska-Jakubowska, senior research fellow at the Center of European Reform, would be counterproductive, a green-card would allow national parliaments to bring a more proactive and meaningful input in the European discussion.
A late-card at the end of the legislative process?
The Early Warning Mechanism allows national parliaments to have a say on the legislative process only at the very beginning by controlling subsidiarity of draft proposals emanating from the Commission. This was problematic for them as such proposals might be altered following the ordinary legislative procedure by the European Parliament and the Council. The idea of a late-card came from the fact that a proposal might completely differ from the initial draft at the end of the process. The late-card would allow national parliaments to be asked their opinions on the last draft amendment before adoption. In practice, one interpretation of the late-card would be the possibility to issue a yellow-card at any point of the legislative process and not only at the beginning. So, instead of only focusing on the initial stage, national parliaments would closely monitor the negotiations at the European level and, at the same time, holding accountable their governments pursuant to the objective to be achieved.
For now, the project of a late-card does not seem to have reached, at least meaningfully, the European discussion, which is actually more concerned about a green-card or a red-card. This does not mean that this new card, extensively discussed however in COSAC, will never be dealt with in the future.
10 years of increasing parliamentary involvement in EU affairs
10 years ago, the Lisbon Treaty introduced a mechanism opening the door to more parliamentary involvement at EU level. For the first time, an instrument gave the possibility for national parliaments to exert influence directly over European processes. In the years following Lisbon, interparliamentary conferences, including the European Parliament, such as COSAC, established real communication channels between parliaments where new ideas such as the red, green or late cards were discussed and developed extensively.
Of course, this whole process is to be contextualised within the rise of parliamentary involvement in EU affairs. It took some time, but national parliaments seem to “europeanise” and are starting to find their place in the European landscape. Through specialised committees on EU affairs or extensive right of information, national parliaments have now sufficient expertise and sufficient ways to scrutinise the European legislative process. Those that once were considered as the losers of European integration have today a central role in promoting democracy and legitimacy in the European Union.
Minh Luca Wang is a Master student at the faculty of Law of ULB.