IV. HOW CAN NATIONAL PARLIAMENTS
MOVE ON FROM A ROLE OF VETO PLAYER TO A PROACTIVE ROLE?
Ms Katrin Auel,
Associate Professor at the Institute for advanced studies in Vienna
1. Introduction
Often hailed as the “Treaty of Parliaments”, the Lisbon Treaty expanded the role of national parliaments in the EU multi-level system rather significantly. While earlier Treaties also mentioned their role in protocols, Article 12 of the Lisbon Treaty formally recognises that national parliaments “contribute actively to the good functioning” of the Union and defines a number of specific instruments and mechanisms that complement existing domestic scrutiny rights and the “Political Dialogue”404(*). Among these are the so-called Early Warning System405(*) (EWS) to ensure the compliance of the EU with the principle of subsidiarity, new parliamentary evaluation and monitoring competencies in the area of internal security (Europol and Eurojust), as well as an emphasis on inter-parliamentary cooperation (IPC).
As will be argued in the following, these instruments seem to have done little in terms of increasing parliamentary influence in EU politics. They do, however, provide national parliaments with the opportunity to move on from the role of strategic “external veto players” (Benz 2004) and to adopt a more proactive, constructive and deliberative role in EU politics. The new provisions emphasise interparliamentary cooperation that can, in turn, create a public structure of communication in which European policies are deliberated across borders. Based on the argument that the emergence of such a structure of communication requires both, inter-parliamentary deliberation and a communicative link to national publics, the following will assess the contribution of the EWS, the Political Dialogue and institutional forms of IPC.
2. After Lisbon: stronger parliamentary influence in EU politics?
More than ten years after the coming into force of the Lisbon Treaty, evaluations of the impact on the role of national parliament in EU affairs are mixed. At first sight, the Early Warning System seems to have been a success: National parliaments have engaged to a varying (Auel and Neuhold 2018), but overall rather active degree in both the EWS and the Political Dialogue, and they have so far reached the necessary quorum to show the Commission a yellow card on three occasions406(*). A closer look, however, reveals that parliamentary influence exerted through the new arenas seems to have remained marginal at best. While Cooper (2019: 936) identifies “at least a handful of cases” where EWS contributions by national parliaments exerted some influence over the final legislative outcome, an assessment of the Swedish Riksdag suggests that parliamentary opinions seem to be at best redundant: Where the final wording of adopted EU legislative acts does indeed reflect parliamentary concerns, this seems mainly due to the fact that `the legislator at the EU level, i.e. the Council and, where appropriate, the European Parliament, had, at least to some extent, similar concerns regarding the Commission's proposal' (Swedish Riksdag, 2018: 177, translation by the author). Indeed, as van Gruisen and Huysmans (2020) show, parliamentary reasoned opinions seem to serve mainly as an early warning for the European Commission regarding potential opposition in the Council. National parliaments have also repeatedly criticised that it remains unclear to what extent their objections, comments and concerns are actually taken into account (instead of many, COSAC 2019). Worse, as De Wilde and Raunio (2018) criticise, resource-intense engagement in the EWS may distract national parliaments from their domestic scrutiny.
By contrast, more institutionalised forms of IPC have flourished since the Treaty of Lisbon with the establishment of two major new Inter-parliamentary Conferences on SECG and CSDP/CFDP as well as a large number of smaller meetings at the committee (chair) level (see Kreilinger 2013, Cooper 2017 and the contributions in Lupo and Fasone 2016). The latest addition is the Joint Parliamentary Scrutiny Group on Europol (Kreilinger 2017) constituted in October 2017. These direct contacts are also complemented by other forms of information exchange, most notably through IPEX.eu407(*) or the European Centre for Parliamentary Research and Development (ECPRD). Yet doubts also remain regarding parliamentary influence though IPC. One reason is that the composition and participation rate of parliamentary delegations to meetings and conferences vary frequently, which is seen to hinder the “development of a shared institutional memory, and ultimately the overall influence of IPC on EU policies” (Wouters et al. 2014: 8). Conclusions issued by inter-parliamentary conferences have no formal role in EU policy processes, they are not even binding for the participating parliaments. Finally, although often referred to collectively, parliaments are by no means a homogenous group. They not only have different policy interests and preference, but also very different views on how parliamentary legitimacy ought to be achieved within the EU, which also translates into different preferences regarding parliamentary involvement in EU politics. Winzen (2017), for example, argues that more intergovernmental or more federal preferences regarding the constitutional development of the EU polity also inform parliamentary preferences regarding their collective rights within the EU (see also Winzen et al. 2015). Bolleyer (2017: 528), by contrast, contends that `inter-parliamentary activism' aimed at strengthening parliamentary influence depends, inter alia, on whether `parliaments perceive themselves as holders of interests separate from their executives' interests'. For European parliamentary systems, this entails a serious deviation from the standard logic of executive-legislative relations. The persistence of this logic is also apparent in the context of the EWM, where parliamentary opinions are a good predictor of government opposition to legislative proposals in the council (Van Gruisen and Huysmans 2020), because they often support the government's positions (Fromage and Kreilinger 2017: 144). This makes it difficult for national parliaments to develop a unified position.
3. A new deliberative role for national parliaments within the EU multi-level system?
From a different perspective, however, it can be argued that the new Treaty provisions are important, not so much because they provide for additional, collective, parliamentary influence, but because they have the potential to strengthen inter-parliamentary deliberation and communication. Cooper (2012), for example, argued that the involvement of national parliaments within the EWS establishes a “virtual third chamber” for the EU: Although they do not meet in a physical space, they form a collective body that can, inter alia, perform a deliberative function. Similarly, Benz (2013, 2016) points out that inter-parliamentary relations are an important element of democracy in the EU because they provide a structure of communication that can generate a public space for discussing policies and link these discussions to the national publics. This emphasis on the legitimising potential of parliamentary communication is also reflected in a broader “communicative turn” in the literature on national parliaments in the EU. Here, scholars have questioned the predominant focus on parliamentary influence and control, highlighting instead the importance of the parliamentary communication function and its potential to make EU political decisions and processes more accessible for citizens (e.g., Auel 2007; Rauh 2015). There is also evidence that national parliaments have been more concerned with their communication role in EU affairs. A number of recent comparative studies indicate that they have made, albeit varying, efforts to communicate EU policies to the citizens408(*).
Yet the question remains whether and how national parliaments can and do use these instruments to extend the scope of parliamentary communication beyond national borders to create `a horizontal structure of public communication in multilevel representation' (Benz 2016: 12). Here, the minimal requirements for the emergence of such a communicative structure are, first, the development of meaningful and substantive inter-parliamentary deliberation and, second, that the results of inter-parliamentary deliberations are being linked to and integrated into domestic public discourses.
4. An emerging inter-parliamentary structure of communication?
As the three yellow cards have shown, the EWS certainly improved coordination between national parliaments, but expectations regarding the development of meaningful inter-parliamentary deliberation via the EWS or Political Dialogue seem exaggerated. Effective coordination seems highly dependent on the emergence of an entrepreneur parliament.409(*) In addition, given the short deadline of eight weeks, coordination usually takes place towards the end of the deadline, under considerable time pressure and through more or less informal communication between parliaments or their liaisons in Brussels. As a result, there seems little time to engage in a substantive inter-parliamentary exchange of views. The Political Dialogue, in turn, while less constraining in terms of focus and deadline, lacks any formal impact beyond the (voluntary) answers of the European Commission. As a result, reaching a quorum is not necessary, and parliaments have fewer incentives to coordinate their opinions in the first place. Finally, scrutiny in both contexts is often delegated to the parliamentary administration, which may lead to a bureaucratisation rather than a parliamentarisation of EU politics: `The “political dialogue” is sometimes neither political nor a dialogue' (Rozenberg 2017: 24).
IPC, in turn, seems to be rather successful in fulfilling its role as an arena for sharing information and inter-parliamentary communication, even though the smaller and more focused meetings at the committee level seem to be more successful in this regard. The larger conferences, such as the flagship conference COSAC, by contrast, have frequently been criticized for their plenary sessions that allow for little real discussion and interaction due to the dominance of prepared speeches and interventions. `These meetings [of the SECG Conference] are always a little frustrating. Each person expresses their position in two minutes, which limits the depth of reflection on such vast subjects' (Sabine Thillaye, former chairwoman of the EAC of the Assemblée Nationale, cited from Boron'ska-Hryniewiecka 2021: 151). Still, exchanging views and best practices as well as networking with representatives of other national parliaments and/or EU institutions seem the main motivations for national parliamentarians to attend inter-parliamentary meetings (Boron'ska-Hryniewiecka 2021: 148; see also Malang 2019, COSAC 2019).
Yet although we lack systematic research in this area, there are indications that inter-parliamentary communication is rarely linked back to domestic discourses, both within and beyond the parliaments. MPs rarely report back on IPC activities to the plenary or even the relevant committees (for France and Poland: Boron'ska-Hryniewiecka 2021: 150ff.), and EWS opinions are usually adopted without plenary debate. By contrast, inter-parliamentary deliberations are, to a large part, accessible to the public. Most inter-parliamentary conferences now provide live streams and/or publish videos of their plenary meetings. In addition, they often provide information on meetings including a summary of the meetings, statements, resolutions and reports. Yet as welcome as such information is, it remains doubtful whether it actually reaches the general public. Most citizen experience politics mainly indirectly through the media, and the latter do not seem to consider even the most prominent IPC meetings newsworthy enough to cover them. Of well over 10.000 newspaper articles on parliamentary EU involvement in the, admittedly dated, dataset410(*) of Auel et al. (2018), fewer than 50 even mention some form of IPC - and the same applies to EWS or Political Dialogue opinions. One reason could well be that neither of the instruments make it very often, if at all, on the domestic plenary agendas. As Auel et al. (2018) show, plenary debates are among the few parliamentary activities in EU affairs that do get regular media coverage.
There are, however, developments that may lead to a more substantial inter-parliamentary deliberation regarding EU legislative proposals: One potentially promising instrument could be the introduction of a so-called `green card', a mechanism that would allow parliaments, provided they reach a certain quorum, to propose new legislative or non-legislative initiatives, or amendments to existing legislation. The idea of the `green card' had gained quite some momentum amongst national parliaments some years ago (e.g., COSAC 2015a, 2015b), the EP had signalled its support for the proposal (European Parliament 2017: para 60), and even the Commission declared its general openness to the idea (European Commission 2017). The green card idea has recently faded into the background, yet if properly implemented, it could provide NPs with an opportunity to engage in a more active and constructive inter-parliamentary deliberation on EU responsibilities than the EWS, which is mainly a defence mechanism.
Another interesting development is the increasing focus of national parliaments on the Commission's annual Work Programme (CWP) as a means to plan their scrutiny activities more strategically. Importantly, the CWP is now also discussed at COSAC's meetings, especially the meeting of COSAC's Chairpersons at the beginning of the year, and serves to identify one or two subjects as the focus of COSAC's activity for the coming year (for details see Fasone and Fromage 2016: 300f.). As a consequence, parliaments could use the CWP not only to establish a stronger link between their domestic scrutiny activities, but also as a means to foster inter-parliamentary deliberation on EU initiatives and proposals.
This could also be combined with a proposal put forward in a report by the EP's Committee on Constitutional Affairs (European Parliament 2018a: 5) and endorsed in a resolution by the EP on 19 April 2018 (European Parliament 2018b), namely the introduction of an annual `European Week' taking place simultaneously in all national parliaments, with debates on the European Agenda between MPs, European Commissioners, Members of the European Parliament and representatives of civil society. If supported by national parliaments, such a format could indeed support the emergence of something akin to a parliamentary European public space.
5. Conclusion
When the Treaty of Lisbon finally came into force in December 2009, it was hailed as the Treaty of Parliaments. And indeed, the new Treaty provided national parliaments with a number of new or reinforced, mainly `soft', means of direct involvement in the legislative process at the European level. As a result, national parliaments now have additional arenas of collective involvement in EU politics - and thus the opportunity to develop from external `veto players' into `multi-arena players' (Auel and Neuhold 2017). Although the impact of the new provisions in terms of direct parliamentary influence on EU policy-making has been so far disappointing, the expectation that the new provisions would lead to increased inter-parliamentary cooperation and communication has, despite all difficulties, certainly been fulfilled. This is mainly true regarding the increase in institutionalised arenas of IPC, and less so for the EWS or the Political Dialogue, where the procedural rules hamper the development of meaningful inter-parliamentary communication. Parliaments have also made increased efforts not only to communicate domestic EU politics to their citizens, but also to make inter-parliamentary communication directly accessible to the public. Overall, however, we have at best seen glimpses of an inter-parliamentary communicative structure that links to and connects domestic public discourses on EU issues.
Here, national parliaments need to find more innovative ways of developing the links between the key democratic institutions at the national (and European) level through inter-parliamentary cooperation and communication into (at least indirect) communicative links to and between domestic publics and discourses. In this regard, proposals such as the introduction of a `green card' or, especially, the organisation of simultaneous parliamentary debates on the European Agenda and the Commission CWP in the framework of a European Week could be a promising way forward.
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* 404 The Political Dialogue, introduced with the Barroso initiative in 2006, aims at establishing a dialogue between national parliaments and the European Commission early in the policy-making process and is not, as the EWS, limited to aspects of subsidiarity (see Janèiæ 2012).
* 405 National parliaments can send a reasoned opinion within eight weeks of receipt of a legislative proposal if they consider the proposal to violate the principle of subsidiarity. These opinions are counted as votes, two per parliament, one per chamber in bicameral systems - and if certain thresholds are reached (one-quarter of votes for freedom, security and justice proposals and one-third for all other proposals), the proposal must be reviewed (the so-called `yellow card'). If a threshold of over 50 per cent of votes is reached, the so-called `orange card' not only forces the Commission to review the proposal, but also allows the European Parliament or the Council, acting by defined majorities, to reject the proposal.
* 406 These are the yellow cards on the `Proposal for a Council Regulation on the exercise of the right to take collective action ...' (Monti II) (COM/2012/130), on the `Proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office' (COM/2013/534) and on the `Proposal for a Directive of the European Parliament and of the Council ...amending Directive 96/71/EC ... concerning the posting of workers in the framework of the provision of services' (COM(2016) 128 final).
* 407 Inter-Parliamentary EU Information eXchange.
* 408 E.g., Auel and Raunio 2014; Auel et al. 2016; Rauh and De Wilde 2018; Umit 2017; Wendler 2016; Winzen et al. 2018.
* 409 See Cooper (2015) or Neuhold and Högenauer (2016) on the role of the Danish Folketing, and Pegan and Högenauer (2016) on the role of the Dutch Tweede Kamer as the main entrepreneurs behind the yellow cards on the Monti II and the EPPO directive, respectively.
* 410 The dataset consists of all articles on parliamentary involvement in EU affairs over a period of four years (2010 - 2013) in seven member states (Austria, Finland, France, Germany, Poland, Spain and the UK) and three newspapers each.