III.
PARLIAMENTARY SCRUTINY OF THE FRENCH GOVERNMENT'S EUROPEAN POLICY: TRENDS AND
DEVELOPMENTS
Mr Didier Blanc, University Professor, Toulouse 1 Capitole
University, Institute for Research in European, International and Comparative
Law (IRDEIC)
The specific control exercised by the Assemblies over the Government's European policy in France emerged at the end of the 1970s. It arose in two contexts: the transposition of the Sixth VAT Directive in 1977 and the election of the European Parliament by direct universal suffrage in 1979. The former gave rise to a feeling of dispossession expressed in particular by MEPs, while the latter breaks the organic link with the European assembly. The Act of 6 July 1979 amended Ordinance No 58-1100 of 17 November 1958 on the functioning of parliamentary assemblies to create a parliamentary delegation for the European Communities in each assembly.373(*). Under the law, they become instruments of information in the service of assemblies in European matters.
The constitutionalisation of the function in 1992 by Article 5 of Constitutional Act No. 92-554 transformed its purpose374(*). The insertion of article 88-4 of the Constitution (hereinafter 88-4 of the Constitution), adds to the right to information an original parliamentary control. This article, which has been amended several times since, states: "The Government shall submit draft European legislative acts and other draft or proposed acts of the European Union to the National Assembly and the Senate as soon as they have been forwarded to the Council of the European Union. In accordance with the procedures laid down by the Rules of Procedure of each Assembly, European resolutions may be adopted, if necessary outside part-sessions, on the drafts or proposals mentioned in the first paragraph, as well as on any document emanating from an institution of the European Union". This preliminary revision, necessary for the ratification of the Treaty of Maastricht, establishes a relationship never denied between the modalities of parliamentary control and the developments of the European construction. It also inaugurates the «Europeanisation» of the French Constitution with the introduction of a title dedicated to the Communities and the Union. Thus, Article 88-4 of the Constitution is the constitutional instrument dedicated to parliamentary control of the Government's European policy. However, it is not exclusive, other means are made available to the assemblies, but within the framework of this contribution it will be the only one analyzed.375(*)
After a difficult start376(*), the implementation of Article 88-4 of the Constitution shows a greater familiarity of parliamentarians with the European Union and its normative production. The governments of the Member States actively participate in the Convention as members of the Council of the Union (Article 16 § 2 TEU). Consequently, the French assemblies intend to exert influence on European legislation by acting directly with the Government. A translation is at work: it is through their control function that the assemblies try to direct the action of the Government within the Council, and ultimately to contribute indirectly to the legislative function of the Union.
The constitutionalisation of the body came later, with the constitutional reform of 23 July 2008.377(*) In fine, Article 88-4 of the Constitution states: "A committee on European affairs shall be established within each parliamentary assembly". Thus, when it comes to parliamentary control of the Government's European policy, it is confirmed that the function creates the body.
This process is subject to two trends of our law: its constitutionalisation and its Europeanisation. The latter seems self-evident, yet formally the scrutiny is conducted in a relationship only of interest to the domestic law. Nevertheless, the provisions of the Protocol on the Role of National Parliaments in the European Union, inserted by the Treaty of Amsterdam and revised by the Treaty of Lisbon, form part of the legal regime governing parliamentary oversight of European affairs378(*). In addition, beyond conventional basis, in 2006 the Commission set up a political dialogue with the national parliaments in which the French assemblies play an active part (see below). This European dimension ensures that the constraints relating to the exercise of this original form of parliamentary scrutiny are taken into account (I), some of which are at the root of its reorientation (II).
1. The constraints on parliamentary scrutiny of the Government's European policy
The constraints on parliamentary scrutiny of the Government's European policy arise from the framework provided by the Constitution (A) and from the EU's institutional system (B).
a) Constitutional constraints on parliamentary scrutiny of the Government's European policy
Initially, parliamentary control of the Government's European policy faced two major constitutional obstacles. Firstly, the limitation of the number of standing committees by Article 46 of the Constitution. It was bypassed by the creation of parliamentary delegations in 1979, which were transformed into committees for European affairs (hereinafter EAC) in 2008. However, the latter are not treated in their statute and functions as standing committees. Secondly, the restrictive regime of parliamentary expression established from the beginning of the Fifth Republic by the Constitutional Council only accepts resolutions by constitutional, organic or by nature determination, that is, relating to the internal functioning of the assemblies379(*). The inclusion of the resolutions in Article 88-4 of the Constitution in the context of the constitutional revision in 1992 allows this form of parliamentary expression, but it does not change its scope. Under no circumstances may a resolution bind its addressee. The choice of the term is explained by its connotation, superior to that of the opinion as recalled by Senator Jacques Larché, Chairman of the Law Commission380(*).
By not binding the Government, the register of resolutions adopted under Article 88-4 of the Constitution is a matter of influence. The assemblies have therefore felt the need to ensure follow-up. The Rules of Procedure of the National Assembly (Rule 151-8) state: «The information communicated by the Government on the follow-up to the resolutions adopted by the Assembly shall be transmitted to the relevant committees and to the Committee on European Affairs». However, this possibility has led to the publication of only one report, with no follow-up381(*). On the other hand, the practice of monitoring has been ongoing in the Senate since 2014, with the High Assembly deciding for the first time "to draw up a report on the consideration and implementation of these various European positions" (IR no. 441 on the monitoring of European resolutions, reasoned opinions and political opinions by Mr Jean Bizet, 4 March 2016, p. 5). This valuable exercise has recently shown that in "approximately 83 % of cases, the positions expressed by the Senate in these European resolutions were taken into account. Five European resolutions were fully or almost fully taken into account during the negotiations in Brussels and/or in the final text (regulation or directive)"382(*). Although resolutions are not binding, they are not without effect. Moreover, from a procedural point of view, the tabling of a motion for a resolution may, under certain conditions, result in the postponement of the inclusion of the text submitted for parliamentary scrutiny on the agenda of the EU Council of Ministers383(*).
Nevertheless, the question of the transformation of resolutions arises regularly. Proposals aimed at reforming Article 88-4 of the Constitution fall into two categories: those transforming their nature, to give them an imperative character; and those constituting a change of degree. These proposals recur frequently in constitutional debates on the revision of treaties whose ratification entails constitutional adjustments. The first category includes a recasting of Article 88-4 of the Constitution, which states, for example: "The Government is bound to respect the joint resolutions of the Assemblies"384(*). Clearly, the adoption of an act constituting an imperative mandate for the Government, along the lines of the Danish Folketing385(*), by one assembly or jointly by both, would guarantee that their expression is taken into account, particularly in cases where the Council takes unanimous decisions (combating discrimination, citizenship, area of security, freedom and justice, etc.). Less radically with regard to relations between the Government and Parliament, the scope of resolutions may vary according to their subject matter and the way in which they are adopted: "The Government is required to comply with joint resolutions of the Assemblies on the area of freedom, security and justice adopted in public session". Concerning the second category: "Resolutions may be passed during or outside sessions (...). The Government takes them into account when determining its position".386(*)
Finally, the fate of these reform proposals depends on the will of the assemblies to use their prerogatives in constitutional matters. In the past, the Senate has used its right of veto under Article 89 of the Constitution to strengthen the role of the Assemblies. Be that as it may, its preference is for formulas that preserve its constitutional autonomy rather than those that bind the expression of the two assemblies, unless this results in a strengthening of its powers, as Article 88-7 of the Constitution illustrates.387(*)
b) Institutional constraints on parliamentary scrutiny of the Government's European policy
In order to defend their legislative function, which is affected by the construction of Europe, the Assemblies have sought to establish a specific form of scrutiny. This concept sheds light on the paradoxical nature of Article 88-4 of the Constitution insofar as scrutiny of the Government's action does not in principle lead to any distinction being made according to its field of action. The use of traditional instruments (hearings, questions, fact-finding missions, etc.) generally applies to a function that falls within the remit of an assembly as a whole. At the same time, these instruments seem inappropriate precisely because of their generality. Thus, the construction of Europe has led to a rethinking of the relationship between the legislative and executive branches, if necessary by establishing original prerogatives illustrated in particular by Article 88-4 of the Constitution. However, the first limitation inherent in this form of control is the logical impossibility of compensating for a reduction in the national legislative function, following the transfer of powers to the Union, by a control function.
All the more so as the control exercised by definition only concerns the Government which, although occupying a central position due to France's rank and weight, cannot on its own steer the direction taken by any particular legislative proposal from the Commission. To put it another way, the democratisation of European legislative procedures is hardly compatible with taking national parliaments into account. The ordinary legislative procedure (articles 289 and 294 TFEU) introduced by the Treaty of Lisbon, which combines qualified majority voting within the Council, where the representative of the French Government sits, with the co-decision procedure, making the European Parliament a genuine co-legislator388(*), makes it difficult to take account of the views of the assemblies at European level. Assuming that the Government intends to be politically bound by a resolution, and assuming that the other members of the Council are sympathetic to its position, it would also be necessary for the majority of the European Parliament to share it. Under these conditions, the parliamentary effort would have to be focused on the Commission, whose right of initiative is protected by the Treaty (Article 293 TFEU). It is therefore clear that it is in the interests of assemblies to share their concerns with the Commission at an early stage. This is made possible by the political dialogue formalised by the adoption by the CAE of the National Assembly of conclusions and by its counterpart in the Senate of political opinions. It goes without saying that these acts have no legal effect.
The second limitation lies in the official addressee of resolutions adopted under Article 88-4 of the Constitution: the Government. However, the final addressee is the European legislator. This limitation - which is not specific to the French Parliament - is thus contained in the exercise of a national control function over the exercise of the European legislative function. This observation has naturally led the assemblies to reflect collectively on the role of the national parliaments in the Union389(*), but also to adapt their practice of Article 88-4 of the Constitution individually.
2. Changes in parliamentary scrutiny of the Government's European policy
These changes are due both, quantitatively, to recent changes in the way Article 88-4 of the Constitution is used (A) and, qualitatively, to use of the article in a way that is likely to undermine the letter and spirit in which it was created (B).
a) Changes in the use of Article 88-4 of the Constitution during the XIVth parliamentary term (2017-2022)
From the outset, the constituent assembly chose to respect the autonomy of the assemblies in the implementation of Article 88-4 of the Constitution. In fact, the number of resolutions on an identical text in the National Assembly and the Senate is an indication of convergence (Table I in annex). It has fallen sharply since Article 88-4 of the Constitution was first implemented390(*). The causes of this phenomenon are more cyclical than structural, particularly in the case of the 2019-2020 and 2020-2021 parliamentary sessions, which are affected by the health situation. On the other hand, one recent trend is indicative of the autonomy of the assemblies: the sharp decline in the adoption of resolutions by the National Assembly. In this case, continuity is one of the virtues of the Senate. Not for nearly 30 years has the National Assembly's scrutiny activity under Article 88-4 of the Constitution been so reduced, without the number of texts transmitted on this basis falling significantly (around 900 per year). Whereas 74 resolutions were adopted by the National Assembly during the tenth parliamentary term (1993-1997), then 51 during the eleventh parliamentary term (1997-2002) and 41 during the twelfth parliamentary term (2002-2007), only 22 have been adopted since the beginning of the current parliamentary term, while at the same time the Senate has adopted 59 (Table II in annex).
To what can such a clear and abrupt change of direction be attributed? As part of the legislative function, the constitutional requirement to transpose directives, as affirmed by the Constitutional Council, necessarily has repercussions for the supervisory function391(*). While this may explain why the National Assembly is mainly affected in terms of its role in drafting legislation, it in no way justifies the emergence of such a movement more than ten years after the appearance of constitutional case law.
Three factors can therefore be put forward. The first concerns both Members of Parliament and Senators, and stems from greater familiarity with European integration. This is due both to its development and to a generational phenomenon: a majority of MPs were in their twenties at precisely the time when the Single European Act and the Maastricht Treaty ensured that European ideas were widely disseminated392(*). Secondly, the current majority in the National Assembly is largely drawn from civil society, which probably makes it less sensitive to the control of European legislation. This is all the more true given that, traditionally under the Fifth Republic, control of the government by its parliamentary majority remains relatively weak. Finally, and decisively, these MEPs were elected at the end of an electoral sequence that saw a candidate for the Presidency of the Republic who was very broadly committed to the European cause. The generational effects, combined with political support for European integration, are undeniable factors behind this shift. Paradoxically, it is taking place in an assembly made up of MPs who are subject to the 2014 law banning the holding of local executive offices concurrently with their parliamentary mandate.393(*)
This reduced activity has an impact on the number of resolutions considered in public sessions (Table III in the appendix). Notwithstanding the reduced number of public sittings due to the health situation since March 2020, the low number of resolutions adopted in this form reflects both the increasing specialisation of ACE members in European affairs394(*) and a relative lack of interest in them on the part of all deputies and senators. In addition to these quantitative changes, there is a new perception of the use of Article 88-4 of the Constitution.
b) A detached use from the letter and spirit of Article 88-4 of the Constitution
Both the letter and the spirit in which Article 88-4 of the Constitution was created were guided by the need to enable the Assemblies to react to the integration of European legislation. In recent years, however, its use has sometimes tended to anticipate this. In other words, the aim is no longer to confine the assemblies to a defensive and reactive role, but to enable them to play a more offensive role395(*). This new concept is rooted in the initiative launched by the House of Lords EU Select Committee in March 2014, relayed by COSAC in Luxembourg on 30 November and 1 December 2015 and supported by Senate Resolution No. 71 on the European Commission's Work Programme of 10 March 2015. In the words of this resolution, the aim is "to implement a right of initiative for national parliaments enabling them to make a positive contribution to the drafting of the European Commission's work programme". This new possibility is known as the "green card", in reference to the control of the principle of subsidiarity entrusted to the national parliaments since the Treaty of Lisbon, which can lead to the issue of a "yellow card"396(*). The Senate and the National Assembly are thus in a position, without any legal basis, to inform the Commission of the need, in their view, to take a legislative initiative.
Ideally, this "green card" should flourish within the framework of the political dialogue launched in 2006 by the Commission following the rejection of the 2004 Constitutional Treaty. The Brussels European Council of 15 and 16 June 2006 in a way gave its imprimatur by welcoming "the Commission's commitment to make all its new proposals and consultation documents directly accessible to national parliaments, and to invite them to give their reactions in order to improve the policy-making process". Although this political dialogue was slow to develop, it is now widely practised by both the CAE of the National Assembly and that of the Senate. However, there is an essential difference between political dialogue, which has arisen in practice, and Article 88-4. The former is structured by the political conclusions or opinions issued by the EAC of each assembly, while the latter results from the resolutions adopted on their behalf.
Consequently, the fact that many resolutions adopted on the basis of Article 88-4 of the Constitution are accompanied by a political dialogue poses a twofold problem, especially when their content is identical to the political conclusions and opinions issued (Table IV in the Annex). On the one hand, the former expresses a parliamentary position on a draft European text, whereas the latter call for a Commission initiative. On the other hand, the Government is the addressee of the former, whereas the Commission is the addressee of the latter. It is true that the French Government, like that of any Member State, can ask the Commission to launch an initiative without any legal authority, or even initiate this process within the Council under Article 241 TFEU (initiative of the initiative), but Article 88-4 of the Constitution was not designed to suggest that the Government support a European legislative initiative. Furthermore, the Assemblies have other channels (political and legal) at their disposal with the Government than that of Article 88-4 of the Constitution to support action in this area. Consequently, the identity of content between resolutions and political conclusions or opinions is problematic in that, not only is the purpose of Article 88-4 of the Constitution distinct from that of political dialogue, but above all their authors and addressees are different.
However, the political conclusions and opinions addressed to the Commission in support of a resolution have the merit of enabling the assemblies to have the assurance that the latter will be brought to its attention and to exert an influence upstream of the European legislative process. It is only under these conditions that the coordinated use of Article 88-4 of the Constitution and political dialogue makes sense. Incidentally, and without waiting for such dialogue, it has happened in the past that the Commission has taken a position on resolutions following an exchange of letters between the Commissioner concerned and the Presidents of the ACEs.
On the other hand, a practice in clear contradiction with the letter and spirit of Article 88-4 can be observed at the end of certain resolutions. Without giving too many examples, we can cite the resolution of the National Assembly on the future of the Common Agricultural Policy (TA 560, 3 February 2021). In calling for "a European definition of `short circuits'", the deputies are using article 88-4 of the Constitution more to evoke a future European law than a law under construction that has passed through the constitutional filter. A more offensive approach to Article 88-4 of the Constitution - albeit a comprehensive one - runs the risk of distorting its application.
This risk is sometimes real, as illustrated by the National Assembly's resolution of 1 November 2020 on the protection of animal welfare within the European Union (TA 493). It was prompted by two Commission communications of 20 May 2020 (COM(2020) 380 and 381 final). Although there is very little mention of animal welfare, this resolution makes it its central theme, inviting the Commission either to propose a revision of existing texts in this light, or to take the initiative for new legislation. The fact that a resolution focuses entirely on the need for a Commission initiative is not so much a problem as the doubts it raises about the Commission's competence. These doubts were dispelled by the Commission's response, which stated that "the welfare of pet animals is not governed by EU legislation. It is the sole responsibility of the Member States" (C(2021) 1384 final, 23 February 2021). This episode is indicative of parliamentary expression under Article 88-4 of the Constitution in contradiction with Article 88-6 C, which specifically entrusts the Assemblies with the role of guardian of the principle of subsidiarity.
Whatever the intensity of the infringements of the letter and spirit of article 88-4 of the Constitution, the use of a "green card" should be reserved for political dialogue alone. Its recognition through a revision of the Treaties, and in particular of the Protocol on the role of national parliaments, would provide a basis for its inclusion in the Constitution, since the Assemblies can only legally exercise the powers that have been expressly assigned to them.
Nearly thirty years after it came into force, parliamentary scrutiny of the Government's European policy in accordance with Article 88-4 of the Constitution sometimes deviates from its initial function to the point of distorting its exercise. Ultimately aimed at drafting EU law, it is not immune to the constitutional constraints of the Fifth Republic, nor to the political constraints arising from majority voting, nor to the specific features of the EU's institutional system.
APPENDICES
Table I: Resolutions adopted under Article 88-4 of the Constitution by the National Assembly and the Senate on identical texts during the XIVth parliamentary term (2017 - )
|
Year |
Field |
National Assembly |
Senate |
|
2017-2018 |
CAP reform Clean Energy Package Mobility Package Cybersecurity package |
TA 150* TA 100 TA 94 TA 69 |
Rés. 116 et rés. 130 Rés. 129 Rés. 135 Rés. 109 |
|
2018-2019 |
Free Trade Agreement (New Zealand and Australia) Maritime corridors |
TA 280 TA 222 |
Rés. 69 Rés. 47 |
|
2019-2020 |
None |
None |
|
|
2020-2021 |
None |
None |
* In bold: resolutions adopted at public sittings (TA for text adopted, res. for resolution)
Table II: Resolutions adopted under Article 88-4 of the Constitution
|
Legislature |
National Assembly |
Senate |
|
XIIIth legislature (2007-2012) |
64 |
63 |
|
XIVth legislature (2012-2017) |
77 |
91 |
|
XVth legislature (2017- ) |
22 |
59 |
Table III: Consideration in public of resolutions pursuant to Article 88-4 of the Constitution
|
Legislature |
National Assembly |
Senate |
|
XIIIth legislature (2007-2012) |
1 |
6 |
|
XIVth legislature (2012-2017) |
10 |
10 |
|
XVth legislature (2017- ) |
3 (2017-2018) None since |
2 (2017-2018) 2 (2018-2019 None since |
Table IV: Constitutional Resolutions 88-4 coupled with political dialogue
|
XVth legislature (2017- ) |
National Assembly (conclusions) |
Senate (political opinions) |
|
2017-2018 |
6 (including mobility package) |
19 (including mobility package) |
|
2018-2019 |
1 (maritime corridors) |
14 (including maritime corridors) |
|
2019-2020 |
Aucune |
13 |
|
2020-2021 |
Aucune |
3 |
* 373 JO, 7 juillet 1979, p. 1643.
* 374 JO, 26 juin 1992, p. 8406.
* 375 For a global approach: P. Türk, Le contrôle parlementaire en France, LGDJ, 2011.
* 376 D. Blanc, Les parlements européen et français face à la fonction législative communautaire. Aspects du déficit démocratique, L'Harmattan, 2004, p. 370 et seq.
* 377 Constitutional Act No. 2008-724 modernising the institutions of the Fifth Republic, OJ, 4 July 2008, p. 11890.
* 378 O. Rozenberg, "Les interactions entre les parlements nationaux et les institutions de l'Union européenne: un panorama"..
* 379 59-2 DC, 24 June 1959 and 59-3 DC, 25 June 1959, OJ, 3 July 1959, pp. 6642-6643.
* 380 JO Senate debates, sitting of 15 December 1992, p. 4072
* 381 IR No. 2459 on the action taken on the resolutions adopted by the National Assembly pursuant to Article 88-4, presented by R. Pandraud, 20 December 1995.
* 382 Information Report No 427 on the follow-up to European resolutions, reasoned opinions and political opinions by Jean-François Rapin, 4 March 2021, p. 7
* 383 Circular of 21 June 2010 on the participation of the national Parliament in the European decision-making process, OJ, 22 June 2010, text no. 1
* 384 Journal Officiel, Débats AN, 2nd sitting of 25 November 1998, p. 9577
* 385 See the contribution by L. Rickers Olesen: How can parliamentary scrutiny of European policy be made more effective? Advantages and disadvantages of the Danish system.
* 386 Journal Officiel, Sénat debates, 17 December 1998, p. 6573
* 387 « By voting in favour of a motion adopted in identical terms by the National Assembly and the Senate, Parliament may oppose a change in the rules for the adoption of European Union acts in the cases provided for, under the simplified revision of the Treaties or judicial cooperation in civil matters, by the Treaty on European Union and the Treaty on the Functioning of the European Union, as they result from the Treaty signed in Lisbon on 13 December 2007».
* 388 See D. Blanc, « Le Parlement européen législateur » , in M. Blanquet (dir.), La prise de décision dans le système de l'Union européenne, Bruylant, 2011, pp. 91-126.
* 389 See N. Lupo, « La coopération interparlementaire au niveau politique et administratif, dans le système parlementaire européen ».
* 390 Between 1993 and 2003, almost half of the Senate's resolutions were identical in subject matter to those of the National Assembly. V. D. Blanc, Les parlements européen et français face à la fonction législative communautaire..., op. cit, p. 459.
* 391 CC no. 2006-543 DC, 30 November 2006, Law on the energy sector. V. P. Gaïa, R. Ghevontian, F. Mélin-Soucramanien, É. Oliva and A. Roux, Les grandes décisions du Conseil constitutionnel, Dalloz, 19th ed. 2018, no. 19, p. 284.
* 392 Under the current legislature, the average age of members of the National Assembly is 51, while it is 60 in the Senate.
* 393 Law no. 2014-125 of 14 February 2014 prohibiting the holding of local executive functions concurrently with the mandate of deputy or senator, JO, 16 February 2014, texte no. 1
* 394 On the decisive contribution of the ACEs in the drafting of resolutions under Article 88-4 of the Constitution: D. Blanc, "La responsabilité politique du gouvernement français du fait de son action européenne: vingt ans de résolutions européennes de l'article 88-4 de la Constitution. (1993-2013)", in P.-Y. Monjal, C. Geslot and J. Rosseto (eds.), La responsabilité politique des exécutifs des Etats membres du fait de leur action européenne, Bruylant, 2016, pp. 206-208.
* 395 See the contribution by K. Auel, "Parlements nationaux: comment passer d'un pouvoir de veto à un rôle proactif?".
* 396 Information Report No. 84 (2015-2016), European Union: Better lawmaking with national parliaments, by Jean Bizet and Simon Sutour, on behalf of the Senate CAE, 15 October 2015, p. 16.