II. INTRODUCTION
Mr Pierre
Laurent, Deputy Chair of the European affairs Committee of the French
Senate
The question of the place to be given to national parliaments in the European decision-making process has been a real issue since 1979, when the European Parliament ceased to be made up of members of national parliaments; at the same time, the gradual increase in qualified majority voting in the Council has diluted the direct responsibility of each of the ministers sitting on the Council for the final agreement reached in the Council, which raises the question of democratic control over this institution, which co-legislates with the European Parliament in a system that some equate with bicameralism.
We began by imagining a system in which the national parliaments were virtually absent, and then it became clear that we needed to gradually involve them, albeit in a very timid way.
The Treaty of Lisbon represented an important step forward, by stipulating that "National Parliaments shall contribute actively to the proper functioning of the Union" and by granting them certain prerogatives: monitoring compliance with the principle of subsidiarity, of course, but also, in particular, a right of veto on the activation of the "bridging clauses", clauses which, in order to give the Treaties a little flexibility, allow them to move, under certain conditions, from unanimity to qualified majority decision-making, or from the special legislative procedure to the ordinary legislative procedure.
More than ten years after the entry into force of the Lisbon Treaty, it is time to take stock of these tools, whose effects have admittedly been limited. What's more, they essentially boil down to a right of veto, confining parliaments to an "obstructionist" role. Are national parliaments doomed to adopt a defensive posture in the European institutional edifice?
This second session will provide an opportunity to take stock of these tools, to assess the limits to our action, particularly on certain policies or in the context of the pandemic, and to consider the role that our parliaments can really play in the European Union, directly as players in the decision-making process.
III. INTERACTIONS BETWEEN NATIONAL PARLIAMENTS AND THE INSTITUTIONS OF THE EUROPEAN UNION: AN OVERVIEW - Mr Olivier Rozenberg, Professor, Sciences-Po, Centre for European studies and comparative politics
The establishment of a European legal order calls into question the legislative function of national parliaments. The deepening of European integration is forcing them to delegate part of their legislative power to the ministers responsible for negotiating the law that will apply internally. However, since 1979 and the direct election of the European Parliament, the national parliamentary chambers, of which there are now 39, are no longer present as such within the European decision-making system. Their European activities mainly resonate with each national public arena (1). In contrast, their collective activities are rare, even if they have recently begun to develop (2). Finally, their impact on European governance is both limited and uncertain (3).
1. A progressive and differentiated assertiveness at the national level
The history of the institutionalisation of the European prerogatives of national parliaments is above all made up of 27 - yesterday 28 - national narratives, depending on the internal balance of power in each Member State. However, the treaty revisions were key moments in the process of revising the national constitutions and the internal rules of procedure of the parliaments. In France, the direct election of the European Parliament led a heterogeneous coalition of Gaullist MPs and federalists to create European affairs Delegations397(*). It was particularly in the years following the ratification of the Single European Act that the chambers developed their European activities. The double observation of an increase in the number of European acts adopted and an increase in decision-making by qualified majority in the Council motivated the awakening of national parliamentarians. Between 1973 and 1995, the accession of states that were more reticent about the integration process and/or had more deeply rooted parliamentary traditions contributed to the proliferation of institutional innovations affecting the European role of assemblies. Successive treaty reforms, from Maastricht to Lisbon, provided parliaments with opportunities to negotiate an extension of their role. Lastly, it should be noted that the States joining the Union in the 2000s had all anticipated accession by preventively integrating existing practices. The granting of certain European prerogatives to national parliaments thus tends to become an implicit acquis communautaire for the candidate countries.
The rights acquired by national parliaments in European matters mainly concern information and opinion. Exchanges between elected representatives within the framework of specialised networks such as COSAC (Conference of European affairs Committees) and the relative proximity of European political systems contribute to the spread of a model of participation in European affairs based on the upstream examination of draft European legislation within the framework of specialised procedures and structures. This model is based on three principles. Firstly, the relationship with time, with parliamentarians supposed to find margins of influence by intervening early. Secondly, the fight against the information deficit from which the legislative power suffers vis-à-vis the executive on European matters. And finally, the idea that only by specialising elected representatives, procedures and human resources can effective action be taken.
Ten years ago, the data gathered as part of the OPAL study (Observatory of National Parliaments after Lisbon) enabled a quantitative assessment to be made of the European activities of the forty parliamentary assemblies over the period 2010-2012398(*). The European affairs Committees, which are found in all parliaments, met on average once a week during part-sessions for almost two hours. Each year, governments received more than thirty-five opinions, the degree of legal and political constraint of which varied greatly from one country to another. While these quantitative data indicate that the Europeanisation of parliaments has not only been formal, but has also resulted in a high level of activity, there is considerable variation from one assembly to another. The Finnish and Swedish assemblies and the Bundestag stand out as having a significant increase in activity. As a general rule, the parliaments that have obtained the most prerogatives in the Constitution or their rules of procedure are also the most active in European affairs.
2. A limited and uncertain assertiveness at the European level
The implementation of European activities within parliaments can be seen as a form of "Europeanisation without the European Union", to use Bastien Irondelle's words399(*). Faced with what amounts to a legal dispossession of some of their prerogatives, the national parliaments have only been able to draw on a few specifically European resources to react. It is true that their mention has been a requirement of the European treaties since Maastricht, but the provisions adopted remain minimal, even incidental. Indeed, the sovereignty of each Member State with regard to its constitutional organisation means that it is impossible to define too precisely what the European powers of the national parliaments should be. As stated in Protocol No. 1 to the Treaty of Lisbon, "the way in which national parliaments exercise scrutiny over their governments in relation to the activities of the European Union is a matter for the constitutional organisation and practice of each Member State". In fact, the notable provisions in the current treaties remain limited. They are as follows:
- the right to information: the European Commission forwards the documents it produces directly to the national parliaments;
- the guarantee of an eight-week period for the examination of draft legislation by the parliamentary chambers;
- the right of veto on the use of the passerelle clause or the switch to the ordinary legislative procedure;
- the obligation to convene a Convention, in which national parliamentarians participate, prior to revising the treaties.
The national parliaments are, in a way, victims of the principle of subsidiarity in constitutional matters - a paradoxical victim since the Treaty of Lisbon has, for the first time, granted them specific prerogatives in terms of monitoring this principle. A complex mechanism, known as the early warning system, allows parliaments to inform the Commission of a possible infringement of the principle of subsidiarity before a proposal is examined by the Council and the European Parliament400(*). If a third of the parliamentary chambers consider that the text poses a problem from this point of view, the Commission can withdraw the text, amend it or maintain it, giving reasons for its decision. This is known as the "yellow card". If the threshold reaches halfway - the "orange card" - it will be easy for the Council or the European Parliament to block the proposal. This original tool, which combines individual examination by the assemblies with their collective participation, has been the subject of ten or so opinions each year. On three occasions, in 2012, 2013 and 2016, the threshold reached one third. On each occasion, the Commission challenged the principle of subsidiarity. In the first case, it decided to withdraw its proposal, and in the second and third cases to leave it unchanged.
Initial experience of this new instrument is generally negative401(*). The one-third threshold is difficult to achieve in the space of eight weeks. Aggregating the opinions of the assemblies is proving to be a risky process, highly contingent and potentially manipulable by national executives anxious to torpedo a Commission draft at an early stage. By leaving its proposal unchanged following the 2013 and 2016 cartons, the Commission has also shown how little regard it has for the mechanism. Many specialists in the field, such as Tapio Raunio, are all the more critical given that the subsidiarity review can mobilise significant resources in parliaments. Moreover, it is to be feared that it contributes to the rise of a parliamentary bureaucracy that is all the more active because it masks the lack of real investment on the part of certain elected representatives. A painless by-product, early warning could be a harmful procedure insofar as it seems to confine parliamentarians to the role of guardian of national sovereignty, at the risk of reducing their debates to this dimension alone. In 2013, the British government proposed introducing a "red card" giving assemblies a genuine right of veto or opting out, which was considered at the February 2016 European Council.
3. Differentiated relationships with the European institutions
Despite the difficulty of involving them formally and collectively in European governance, the national parliaments do have an influence on it, given the European activities specific to each chamber and the effects of the recurrent debate on their role. They maintain specific relations with the various European institutions.
Outside the subsidiarity control procedure, parliaments have been taking part in an informal consultation process known as "political dialogue" with the Commission since 2006, at the initiative of President Barroso. They can send any comments on proposed legislation to the Commission, which has undertaken to respond. This procedure, which enables the Commission to pursue a long-standing strategy of legitimising its actions by enlisting the support of the public, is proving to be of little importance, judging by the formal nature of many of the opinions and their responses.
Relations with the European Parliament are paradoxical, even schizophrenic. On the one hand, there are many examples of fruitful cooperation. Officials from the national parliaments who are sent to Brussels on a permanent basis have an office on the premises of the European Parliament. Several European affairs committees involve MEPs from the same country in their work, when they are not full members. Numerous meetings, in various formats, bring together national and European parliamentarians, notably through the standing committees. In the field of foreign policy, an assembly made up of both types of elected representatives was created in 2012, following on from the Western European Union assembly. However, inter-institutional relations continue to be characterised by muted competition as soon as they take on a more formal or even constituent aspect. The setting up of interparliamentary forums bringing together elected representatives from both levels regularly comes under fire from elected representatives and officials of the European Parliament. The "assises" provided for in the Maastricht Treaty have not met since the 1990 experiment. The idea of a third chamber of national parliaments, put forward by President Giscard during the 2001-2002 Convention, was immediately rejected. The interparliamentary forum provided for in the European Budget Pact led to the painstaking establishment in 2013 of a structure with an unspecified number of members per delegation. The Union's multi-level parliamentary system is therefore deeply ambivalent. In this respect, the increased specialisation of political careers suggests a growing conflictuality in the future.
With regard to the European Council, the national parliaments are proving to be very active when it comes to controlling the President or Prime Minister of their State. The economic crisis that began in 2009, which increased the number and importance of these summits, led to a proliferation of committee hearings and debates in plenary sessions. It is worth noting that parliaments that are usually less active in European affairs, such as Ireland's, have taken action. In several assemblies, such as the Dutch lower house, reforms were undertaken to increase upstream scrutiny, via a debate in session in the presence of the Prime Minister, rather than ex-post meetings. Politically, these debates are sometimes crucial. They allow the Prime Minister to gauge the commitment of his parliamentary majority. Upstream, they are opportunities to send signals both to public opinion and to other States. Downstream, they contribute to the normative framing of the Council's decisions within the national public arena. For example, it was the debates in the Commons in 2011-12 which, faced with the mobilisation of Conservative backbenchers, forced David Cameron to reaffirm his promise of a referendum on EU membership - held in 2016, the consequences of which we now know - or to refuse to sign the Budget Pact402(*).
In regards to the Council of the EU, the effects of national parliaments are complex to pin. Some ministers are bound by negotiating mandates, even though they can either define them in advance (Denmark) or deviate from them if necessary (Germany). On the other hand, the parliamentary scrutiny reserve, which obliges a State not to take part in the vote while the matter is under parliamentary scrutiny, is easily circumvented through informal political agreements. Beyond the individual effect on "its" minister, a Parliament can hope to influence the Council's position if it represents a large State and/or if the mobilisation of several assemblies is simultaneous and supported by public opinion, as was the case for the renegotiation of the Services Directive in 2005. Lastly, we may wonder about the ability of a national negotiator to use his Parliament in European discussions, by turning his domestic constraints into a strategic asset. The literature is lost in conjecture on this subject for want of any real knowledge of secret diplomatic games. It would seem that the invocation of parliamentary constraint is all the more effective if it is: a. sincere and credible, b. limited so as not to discredit the negotiator, c. used during the negotiation of treaties, for which parliaments have a right of veto, rather than with regard to secondary legislation. Although the effect of national parliaments is uncertain when it comes to the actual negotiations, it seems clearer when it comes to the official positions taken by ministers. The correlation between the absence of a positive vote in the Council and parliamentary activity suggests that the most active parliaments force their ministers not to officially support certain projects in the Council, but this public stance is largely disconnected from the genuine informal and secret negotiations between Member States.
Finally, with regard to the European Court of Justice, since 2009 national parliaments have been able to bring cases before it for failure to comply with the principle of subsidiarity. The wording of the provision is relatively ambiguous, since this right is conditional on a State's internal legal order, which suggests that it remains subject to the goodwill of the executive. It has not yet been used.
***
In conclusion, it can be seen that the effects of national parliaments on European governance are limited, diffuse and doubly differentiated, depending on the assemblies concerned and the European institutions with which they interact. Despite the difficulty of assigning them a role in the Treaties and the temptation to multiply procedures and gadget bodies, parliaments remain essential forums for developing national narratives of participation in the European Union. In this respect, they help to define the limits of what is possible in Europe and thus provide a long-term framework for the governance of the Union.
To conclude, there are three key challenges to the participation of national parliaments in European affairs. The first is to involve the opposition more effectively in order to guarantee the parliamentary quality of the work done by the chambers. A number of avenues could be explored in this respect, such as sending minority opinions to the EU institutions, in particular the Commission, or making it compulsory for all parliamentary delegations to have a pluralist composition. The chambers must then calibrate the timing of their interventions. Contrary to a widespread opinion, particularly in northern Europe, that they should intervene as far upstream as possible, parliaments should multiply the number of times they intervene throughout the very long - almost two years - procedure for negotiating European legislation. It is conceivable that interparliamentary conferences could be organised on a relatively flexible basis on the eve of important trialogues on a sectoral basis corresponding to the committees of the national parliaments and the European Parliament concerned. Finally, following on from this last suggestion, the national parliaments have everything to gain from developing agility in their dealings as well as in their relations with the institutions of the European Union. In this respect, it is worth drawing on the lessons learned from operating remotely during covid : electronic communication tools make it possible to reduce the cost of meetings and to bring elected representatives together on a more equal basis than when they are invited to the European Parliament403(*). In addition, the creation of automated simultaneous translation tools for this type of virtual meeting represents the new frontier of interparliamentary cooperation, raising hopes of a more dynamic multi-level parliamentary governance of the Union.
* 397 Olivier Rozenberg, Les députés français et l'Europe. Tristes hémicycles ?, Paris, Presses de Sciences Po, 2018.
* 398 C. Hefftler, C. Neuhold, O. Rozenberg et J. Smith (dir.), Palgrave Handbook on National Parliaments and the European Union, Basingstoke, Palgrave Macmillan, 2015 et K. Auel, T. Christiansen (dir.), « After Lisbon: National Parliaments in the European Union », numéro spécial de Western European, Politics, vol. 38, n° 2, 2015.
* 399 Bastien Irondelle, « Europeanization without the European Union? French Military Reforms 1991-1996 », Journal of European Public Policy, 10 (2), 2003, p. 208-226.
* 400 P. Kiiver, The Early Warning System for the Principle of Subsidiarity: Constitutional Theory and Empirical reality, Abingdon, Routledge, 2012.
* 401 Olivier Rozenberg, “The Role of National Parliaments in the EU after Lisbon: Potentialities and Challenges”, Rapport, Parlement européen, Direction générale des politiques internes de l'Union, PE 583.126, 2017.
* 402 Olivier Rozenberg, « Order and disorder. Le Bexit ou la victoire amère des études parlementaires », Revue française de science politique, 71/4, 2021, pp. 599-621.
* 403 Olivier Rozenberg, Cyril Benoît, “La démocratie parlementaire peut-elle se passer du Parlement ? », dans Marc Lazar, Guillaume Plantin et Xavier Ragot (dir.), Le monde d'aujourd'hui. Les sciences sociales au temps de la Covid, Paris, Presses de Sciences Po, 2020, pp. 191-206.