M
ASTER
’
S
T
HESIS
EU
L
AW ANDN
ATIONALI
NSTITUTIONALA
CTORSBeyond the question of subsidiarity?
A possible constitutional conventional rule arising from practice regarding the
Early Warning System.
Supervisor: Thomas Vandamme
Student: François Paulus (n°10846921)
2
Table of contents
I. Introduction ... 4
II. The meaning of the concept of constitutional conventional rule ... 5
1. A definition ... 5
2. Process of identification ... 7
3. Impact on the constitutional structure and development ... 9
III. The role of national Parliaments in the EU and the Early Warning
System ... 10
1. General background ... 10
1.1. The Treaty evolutions ... 11
1.2. The European Affairs Committees ... 12
2. The Treaty of Lisbon and the Early Warning System (EWS) ... 13
2.1. Extended powers ... 13
2.2. The Early Warning System ... 14
(A) The principle of subsidiarity (B) The yellow and orange cards
IV. The Early Warning System in practice ... 18
1. General overview ... 18
2. Behind the “subsidiarity label” ... 20
2.1. For a normative appraisal of the EWS ... 20
3
2.3. The normative perception of the actors ... 26
(A) Questions asked (B) The normative perception of the national Parliaments (C) The normative perception of the European Commission
V. The emergence of a constitutional conventional rule... 30
1. The scope of the constitutional conventional rule at issue ... 31
2. The emergence of a constitutional conventional rule ... 31
2.1. Discussion ... 31
2.2. For the emergence of the rule ... 32
3. Evaluation ... 34
3.1. The democratic legitimacy of the EU ... 34
3.2. The development of the European constitution ... 36
VI. Conclusion ... 37
VII. Bibliography ... 38
1. Literature ... 38
2. Communications and reports ... 42
3. Case law ... 43
4
I. Introduction
The purpose of this thesis is to analyse whether an unwritten constitutional convention exists or is emerging in the European Union (EU) according to which the scope of the Early Warning Mechanism - established by the Protocol on the application of the principles of subsidiarity and proportionality annexed to the Lisbon Treaty - is not strictly limited to subsidiarity concerns but also extends to legal or policy arguments. In that case, the question also arises whether the Commission is obliged to take into account reasoned opinions, primarily politically motivated, issued by national Parliaments, notably with a view to triggering the yellow or orange card procedures.
In order to address those questions, it is first essential to define what is meant by a constitutional convention. In that regard, we especially base upon the interesting definition of constitutional convention given by Thomas Beukers1 in his PhD dissertation, which is itself inspired by British Scholars’ work.2 This concept has, in our opinion, the power to get a better understanding of the reality of the European constitution and to depict in a more accurate way the share of powers between institutions and bodies, like national Parliaments, intervening in the European process. Here, constitutional conventional rules are understood as the fixation of the interpretation given to legally binding rules by the actors themselves and form political rules about the exercise of legal powers.
In order to identify a possible constitutional convention, we first describe the formal legal rules pertaining to the Early Warning System (EWS) introduced by the Lisbon Treaty and granting to the national Parliaments the right to monitor the compliance by the European institutions with the principle of subsidiarity. We also briefly recall the evolution of the role of national Parliaments within the European constitutional construction.
Furthermore, the application of this mechanism in practice has to be studied. Thereby, we especially focus on the substance of the reasoned opinions submitted by the national Parliaments to the Commission. Moreover, we attempt to discover their perception regarding the EWS since they are the actors of the mechanism. In that regard, we have decided to directly ask both the national Parliaments and the Commission.
1
Beukers, Law, Practice and Convention in the Constitution of the European Union, 2011. 2 See notably Wheare, Modern Constitutions, 1966.
5 Indeed, in addition to the analysis of the legal rules and the data available pertaining to the EWS, the representatives of the national Parliaments for EU affairs and the Co-ordinator for Inter-Institutional Relations at the European Commission were interviewed in order to get their opinion on the practice according to which legal and policy arguments are also invoked by national Parliaments when they submit a reasoned opinion in the framework of the EWS.
Moving from a descriptive to an explanatory perspective, we examine on the basis of both theory and practice whether it could be argued that a constitutional convention exists or is on the verge of taking shape and which would demonstrate that, in fact, the scope of the EWS goes far beyond the pure monitoring of the principle of subsidiarity. Finally, the impact of such a constitutional convention on the democratic legitimacy of the European Union and on the development of the European constitution is analysed.
II. The meaning of the concept of constitutional conventional rule
In order to answer the question raised, it is necessary as a first step to clarify what is meant by an unwritten constitutional conventional rule. This concept has been particularly developed by Thomas Beukers in his PhD dissertation dedicated to analysing the “Law, Practice and Convention in the Constitution of the European Union”.
1. A definition
While recognising that the concept of constitution has several meanings,3 we have decided here to understand the constitution as the rules on the organisation, definition and limitation of public powers.4 Given that the EU has such a constitution,5 Beukers defines the constitutional conventions, in the European framework, as “political rules about the exercise of legal powers”6 and “as a fixation of the interpretation given to legally binding rules given by the
3 See, notably, on the thin and thick sense of the notion of constitution: Raz, On the Authority and Interpretation
of Constitutions: Some Preliminaries, in: Between Authority and Interpretation: On the Theory of Law and Practical Reason, 2009, chapter 13 [online].
4
Beukers, op. cit., p. 10. See also Constantinesco and Pierre-Caps, Droit constitutionnel, 2006, p. 207; Wheare,
op. cit., p. 1.
5 For a confirmation: Craig, Constitutions, Constitutionalism, and the European Union, European Law Journal 2001/7, p. 128-130 [online].
6 actors themselves”.7 In particular, Beukers refers to the British constitutional theory on this concept and points out the definition provided by Wheare, according to whom constitutional conventions “are held to be morally binding and politically binding, but until they are enacted by the appropriate machinery of a state they do not in most countries alter the law or form part of the law”.8
Criticizing the lack of interest of Scholars in constitutional conventions, Beukers notes that although these conventions are not legally binding, they do have a normative force and often reveal where real power lies and how the latter is exercised.9 These conventions exercise an influence on the EU’s constitution so that a development or an evolution is possible without any formal amendment. In that regard, it is worthwhile to point out that our study does not cover the question of the legitimacy of such a type of formally unconstitutional source of EU Treaties evolution.
In fact, Beukers makes the distinction – on which we shall return below - between the
structural impact of the conventions on the constitution and the development of the
constitution stemming from the conventions. For instance, the Luxembourg Compromise following the “Empty chair crisis” of 1965 can be analysed as a constitutional convention having a structural impact since a number of Member States in the Council agreed on the point that whenever a fundamental interest of a Member State is at stake a veto is possible.10 Regarding the development of the constitution, the appointment procedure of the European Commission is emphasized.11 Through the years, a convention not laid down in the Treaty has emerged according to which candidate Commissioners have to appear before a parliamentary committee hearing. This is more than a mere practice since a conventional obligation is deemed to exist.12 However, in our opinion, this distinction is a bit artificial since if a constitutional conventional rule has an impact on the development of the European constitution, this will certainly also have an impact on the structure of this constitution as the obligation for candidate Commissioners to appear before the European Parliament demonstrates.13
7 Beukers, op. cit., p. 5. 8 Wheare, op. cit., p. 122. 9
Beukers, op. cit., p. 1. 10 Ibid., p. 2.
11 Ibid., p. 3. 12
Ibid., p. 3-4. 13 Cf. II. 3.
7 From a legal point of view, constitutional conventions help to understand the legal constitution by paying attention to the practice and rules flowing from it.14 Moreover, besides the legal powers conferred by the formal constitution, conventional powers exist outside the Treaty framework and are granted through conventions. Both legal and conventional powers ultimately determine the actual powers of institutions and their bargaining power.15 For example, according to the multiannual budgetary procedure, created outside the Treaty, the European Council has the (conventional) power to establish the limits of all expenditure, thereby supplementing the law and limiting the exercise of legal powers of the other European institutions.16
2. Process of identification
According to Beukers, the process of identification for constitutional conventions based on practice or precedent involves a number of steps.17 First, one has to focus on the relevant formal legal rules and the interpretation given to them. Then, the study of the application of these rules in practice has to be carried out. Thirdly, the question has to be analysed whether the application of the formal legal rules has led to the development of political or conventional rules. Finally, regarding the previous steps, the relation between the formal legal rules and the conventional rules, as well as the impact of the latter, has to be examined and assessed. This methodology combines legal exegesis of texts, historical research on the application of rules and a more political analysis.18
By this method, the purpose is not to formulate models and assumptions in order to explain and predict the behaviour of actors but rather to emphasize the role of constitutional conventions as social rules constraining the exercise of legal powers by the institutions of the European Union.19 In other words, any behaviour departing from the constitutional convention is perceived as a violation. That is the reason why it is also important to analyse the perception of the actors through notably interviews, comments, declarations, contestation of an existing rule, reactions to non-observance and to observance.20
14 Beukers, op. cit., p. 5. 15 Ibid., p. 5 and 82. 16
Ibid., p. 6.
17 Ibid., p. 20: the process of identification for conventions based on written agreement is slightly different. 18 Ibid.
19
Ibid., p. 83. 20 Ibid., p. 83-84.
8 Furthermore, the author makes a distinction between constitutional conventions, practices and customary legal rules. Indeed, constitutional conventions having a normative character are different from mere regularity in constitutional behaviour (practice or usage). For instance, under the qualified majority decision-making in the Council, the concept of constitutional convention allows a better understanding of the the fact that interests of a Member State particularly affected are taken into account or that a commitment exists between a number of Member States to support the invocation of a vital interest,21 while taking a decision is a mere practice. Normative elements such as the beliefs of actors, the rationale of a rule and its context can be taken into account to distinguish a constitutional convention from mere practice.22
In comparison with customary law also encompassing rules arising from the practice, constitutional conventions are not enforceable law and do not form part of the international public law which primarily applies to States and not to political actors in constitutional systems.23 Moreover, constitutional conventional rules can hardly be defined as customary law since they do not comply with the strict criteria set for customary rules, although they have a strong normative character.24 Indeed, conventions have an independent role in both continental and British approaches since the formal criteria of court enforcement in the latter approach and the opinio iuris criteria in the continental approach appear to be stricter than those of constitutional conventions.25
It should be noted that identifying a constitutional convention is not an easy exercise given that nobody has the formal power to state that a convention exists or not26. In addition, constitutional conventions may have different normative intensity and have a variable scope27. For instance, the rule prescribing to take into account the interests of a Member State affected by a specific decision is not always perceived to be observed while it can be difficult to define what is required by “taking into account”.28
21 Beukers, op. cit., p. 89, 196-197. 22 Ibid., p. 197.
23 Ibid., p. 91 and 199. 24
Ibid., p. 90. 25 Ibid., p. 199.
26 Munro, Studies in Constitutional Law, 1987, p. 46. 27
Beukers, op. cit., p. 90 and 198. 28 Ibid., p. 198.
9
3. Impact on the constitutional structure and development
In addition to the study on the identification of constitutional conventions, Beukers gives attention to the significance of convention for constitutional structure and development.29 As for the analysis of the significance of convention for constitutional structure, an important distinction is made between political and legal constitution. In brief, it can be said that “in a political constitution, the constitution is politics and the political institutions limit the exercise of public power through political rules” whereas “in a legal constitution, the constitution is a legal framework and judicial institutions limit the exercise of power by enforcing legal rules”.30 It should be noted that constitutions usually include elements and characteristics of both.
As regards the role of convention in constitutional development of the European Union, different distinctions are also used like the one between revolutionary and evolutionary change or the distinction between a rigid and a flexible constitutional change, emphasizing the procedural conditions for constitutional amendment.31 On the basis of the European Commission investiture procedure, it is argued that constitutional conventions form a source of constitutionalisation,32 reinforce the evolutionary nature of constitutional change of the EU and allow the political constitution to develop independently of the legal constitution.33 A constitutional conventional rule can for instance be an anticipation of a future Treaty amendment.34
By especially focusing on the obligation for candidate Commissioners to appear before a parliamentary committee hearing, Beukers shows that the constitutional convention concept may explain the existence and characteristics of the obligation placed upon the candidate Commissioners.35 More precisely, this duty is not part of the legal constitution (the Treaty) but can be seen as a political rule, being a product or part of the political constitution.36 In that
29
Beukers, op. cit., p. 293 and following. 30 Ibid., p. 294. 31 Ibid., p. 294, 365-367. 32 Ibid., p. 351-354. 33 Ibid., p. 295. 34 Ibid., p. 354. 35 Ibid., p. 302.
36 Ibid., p. 306-307: it depends on the definition given to political constitution: either the political constitution is seen as an empirical construct of what happens or also includes the politically binding rules limiting the exercise of public power.
10 case, and although conventions can also nullify the effects of legal rules and transfer the exercise of legal powers to other institutions,37 the convention supplements the law and consequently affects the legal constitution.38 Moreover, by creating a conventional power for the European Parliament to scrutinize candidate Commissioners, conventions have an impact on the constitutional structure.39 It is noteworthy that the European Parliament increases here its powers over the Commission and uses convention as an autonomous source of development of the constitution.40 In particular, the existence of such a conventional power hinges on the existence of a correlating conventional obligation (in the case, the obligation for candidate Commissioners to appear before the EP).41 In addition, such a conventional power does not find its normative foundation in a legal rule, but rather in the perception of the actors of being bound by the convention and is, in consequence, not enforceable by the courts.42
III. The role of national Parliaments in the EU and the Early Warning
System
Regarding the different steps to follow for the identification of a constitutional convention and before examining the relevant practice, we have first to identify the formal legal rules pertaining to the so-called Early Warning Mechanism. However, before describing the legal novelties introduced by the Lisbon Treaty, a general background is provided on the evolution of the role of national Parliaments through the EU Treaties.
1. General background
Within the European framework, national Parliaments typically ratify Treaties, hold to account the ministers negotiating at the EU level and transpose Directives into national law.43 However, due to the increasing transfer of powers from the Member States to the European Union, the role of national Parliaments as legislative, budgetary and controlling authorities
37 Wheare, op. cit., p. 124.
38 Beukers, op. cit., p. 303, 308-312. 39 Ibid., p. 307.
40 Ibid., p. 303. 41
Ibid., p. 319. However, conventional obligations are not always accompanied by a new conventional power: ibid., p. 320.
42 Ibid., p. 318-319. 43
Kiiver, The conduct of subsidiarity checks of EU legislative proposals by national parliaments: analysis,
11 has been gradually eroded.44 A decisive step was the direct election of the European Parliament whereas until 1979 the Members of the European Parliament were appointed from the national Parliaments, thereby keeping organic links between both institutions. In order to struggle against this movement of “deparliamentarisation”45 characterised by the absence of national parliamentary participation in the EU decision-making and the limited domestic accountability of the executive actors acting at the EU level, the role played by the national Parliaments in the European Union has been increasingly reinforced. Moreover, it is argued that it would strengthen the democratic legitimacy of the EU since the national Parliaments are the first representatives of the European citizens.46
1.1. The Treaty evolutions
Two non-binding declarations (n°s 13 and 14) were first adopted by the Maastricht Treaty.47 These declarations ensured, on the one hand, that the governments of the Member States transfer to the national Parliaments Commission proposals for legislation in good time for information or possible examination. On the other hand, they provided for cooperation between the European Parliament and the national Parliaments (contacts, regular meetings and reciprocal facilities). Then, a Protocol on the role of national Parliaments has been annexed to the Treaty of Amsterdam, requiring consultation documents (green and white papers, communications) to be forwarded directly by the Commission to the national Parliaments whereas legislative proposals had to be forwarded by the governments to allow Parliaments to examine them before any decision of the Council.48 An important role was also played by national Parliaments during the debates on the Convention of the Future of Europe, whose provisions on the role of national Parliaments were largely integrated into the Lisbon Treaty.49 With the Barroso Initiative in May 2006, the Commission undertook to directly transfer all new proposals and consultation papers to the national Parliaments while
44 Jans and Piedrafita, The Role of National Parliaments in European Decision-Making, Eipascope 2009/1, p. 19 [online].
45 Cygan, The parliamentarisation of EU decision-making? The impact of the Treaty of Lisbon on National
Parliaments, E.L. Rev. 2011/36(4), p. 481-483 [online]; Winzen, Political Integration and National Parliaments in Europe, Living Reviews in Democracy 2010, p. 2-3 [online].
46 Stratulat, Legitimising EU Policymaking: What Role for National Parliaments?, Discussion Papers for the Session 1 of the BTTD 2014, p. 2-3 [online]; Cygan, op. cit., p. 481.
47 These declarations are available online via http://www.eurotreaties.com/maastrichtfinalact.pdf; Raffaelli, The
European Parliament: relations with the national parliaments, Fact Sheets on the European Union 2014, p. 1-2
[online].
48 Cygan, op. cit., p. 493. The Protocol is available online via
http://www.eurotreaties.com/amsterdamprotocols.pdf.
12 inviting them to react and to comment on these proposals.50 This Initiative, still current, creates a political dialogue between the national Parliaments and the Commission on questions not directly related to subsidiarity (as it is explained below).51
1.2. The European Affairs Committees
It should be noted that in parallel of these evolutions, Committees specialised in European affairs have been set up at national level, which play a role in the control over the governments’ European activities by scrutinizing European documents and policies.52
Indeed, it can be said that the national Executives, as they are represented at the European level and have direct access to European decision-making, are in a predominance position in comparison with the national Parliaments.53 That is the reason why, in order to compensate for this power imbalance, a strengthened parliamentary control has been put in place in all Member States through these European Affairs Committees.54 This control has been, in addition, facilitated by the mentioned Treaties evolutions enshrining the right for the national Parliaments to be informed of the draft legislative acts, with the objective of securing ministerial accountability. The way national Parliaments organise the scrutiny may nonetheless vary across Member States ranging from requests to clarify the government positions to mandates provided for national representatives working in COREPER55 and, if necessary, for the government ministers bargaining in the Council.56 For example, the Danish
Folketing has put in place control mechanisms to strengthen ex ante accountability, with a
powerful European Affairs Committee issuing negotiation mandates, whereas others, like the
50 Communication from the Commission to the European Council, A citizens’ agenda. Delivering results for
Europe, COM(2006) 211 final, Brussels 10-05-2010 [online].
51
Cygan, op. cit., p. 494-495.
52 Winzen, op. cit., p. 3; Jans and Piedrafita, op. cit., p. 20; Article 10(2) TEU. 53 Jans and Piedrafita, op. cit., p. 19-20.
54 Ibid., p. 20. 55
See Article 240 TFEU on the Permanent Representatives Committee (COREPER) which is responsible for preparing the work of the Council of the European Union.
56 See notably on the so-called document-based model and on the so-called mandating or procedural system: Jans and Piedrafita, op. cit., p. 21-22; COSAC Secretariat, Third bi-annual report: developments in European
Union procedures and practices relevant parliamentary scrutiny, May 2005 [online]; Cygan, op. cit., p. 481. See
also for a cross-national and longitudinal comparison: Winzen, National Parliamentary Control of European
Union Affairs: A Cross-national and Longitudinal Comparison, West European Politics 2012/35(3), p. 657-672
[online]. See on the different roles played by EU committee chairs at the House of Commons and at the French National Assembly: Rozenberg, The Emotional Europeanization of National Parliaments: Roles played by EU
13 Dutch Tweede Kamer, have established a less strong Committee but created ex post mechanisms, like regular plenary debates following European Council summits.57
2. The Treaty of Lisbon and the Early Warning System (EWS)
A further important step was taken by the Treaty of Lisbon. Indeed, the latter grants new powers to national Parliaments via, on the one hand, new articles in the Treaty itself and, on the other hand, the rewritten Protocols on the role of national Parliaments in the EU and on the application of the principles of subsidiarity and proportionality, annexed to the Treaty. While a protocol on the role of national Parliaments already existed, it is the first time that the European Treaties mention the national Parliaments while conferring on them extended powers. As a general rule, national Parliaments have to ensure compliance with subsidiarity (Article 5 TEU) and to contribute to the good functioning of the EU (Article 12 TEU).
2.1. Extended powers
First, we point out that the scope of their right to receive documents directly from the European institutions has been broadened and legally entrenched to include the Commission consultation documents (green and white papers and communications), the annual and other instruments of legislative planning, the agendas for and the outcome of meetings of the Council, the annual report of the Court of Auditors, as well as the draft legislative acts.58 In order for the national Parliaments to analyse the forwarded documents, an eight-week period takes place between the transfer of a draft legislative act and the date when it is placed on a provisional agenda for the Council for its adoption, except in cases of urgency.59
Representatives of the national Parliaments also take part in the Convention aims at formulating recommendations for future Treaty revisions (ordinary Treaty revision procedure - Art. 48 (3) TEU). Moreover, the national Parliaments can individually oppose the use of the so-called passerelle clauses (bridging clauses) allowing a switch from unanimity or special legislative procedures to qualified majority voting or to the ordinary legislative procedure. In
57
De Wilde, Ex ante vs. Ex post: the trade-off between partisan conflict and visibility in debating EU
policy-formulation in national parliaments, Journal of European Public Policy 2011/18(5), p. 672 [online].
58 Protocol (No 1) on the Role of National Parliaments in the European Union, Articles 1, 2, 6 and 7. 59
Ibid, Article 4. It should be noted that another ten-day period shall also elapse between the placing of a draft legislative act on the provisional agenda for the Council and the adoption of a position.
14 that regard, the European Council has to notify six months in advance of the intent to use the so-called passerelle clauses (Art. 48 (7) TEU and Art. 81 (3) TFEU).
In addition, national Parliaments are involved in the evaluation of EU policies in the area of freedom, security and justice (Art. 70 TFEU), in the evaluation of Eurojust’s activities (Art. 85 TFEU), and in the scrutiny of Europol’s activities (Art. 88 TFEU). They are also informed of requests for accession to the EU (Art. 49 TEU).
Furthermore, national Parliaments take part in the inter-parliamentary cooperation with the European Parliaments. Against that background, the Conference of Parliamentary Committees for European Affairs (COSAC60), first formally recognised by the Amsterdam Treaty, meets twice a year since 1989 and brings together a delegation of the European Parliament and the Members of the European Affairs Committees.61 This Conference is in fact a forum aimed at exchanging information and best practices on parliamentary involvement in the EU. According to the Protocol on the role of national Parliaments and although its role remains limited,62 it may make any contribution it deems appropriate for the attention of the institutions of the EU.63
We could also mention the Conference of Speakers of the Parliaments of the EU (EUSC). This Conference meets in the spring of each year in the country holding the EU Council presidency during the second semester of the previous year. This Conference gathers together Speakers of the Parliaments of the EU Member States and the President of the European Parliament in particular to exchange opinions, information and experiences on topics related to the role of Parliaments and the organisation of parliamentary functions.64
2.2. The Early Warning System
However, the major advance of the Treaty of Lisbon with respect to the national Parliaments is the Early Warning Mechanism set up by the rewritten Protocols on the role of national
60 COSAC refers to the French idiom “Conférence des Organes Spécialisés dans les Affaires Communautaires”. 61 Jans and Piedrafita, op. cit., p. 20.
62 See an argumentation for the reinforced role of COSAC: Neyer, Justified Multi-level Parliamentarism:
Situating National Parliaments in the European Polity, The Journal of Legislative Studies 2014/20(1), p.
134-135 [online].
63 Protocol (No 1) on the Role of National Parliaments in the European Union, Article 10. 64
Report on “Interparliamentary relations between the European Parliament and national Parliaments under the Treaty of Lisbon” 2009-2014, Annual Report 2013/2014, p. 12 [online].
15 Parliaments and on the application of the principles of subsidiarity and proportionality. According to this mechanism, national Parliaments have to monitor possible breaches of subsidiarity by the EU.65
(A) The principle of subsidiarity
First introduced in the Maastricht Treaty, the Lisbon Treaty states in Article 5(3) TEU that “under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”. This implies two linked questions: first whether the proposed action can or cannot be sufficiently achieved by the Member States acting on their own; and second, whether the action can be, by reason of its scale or effects, better achieved at Union level.66 This principle is closely linked to the principle of proportionality, according to which “the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties” (Article 5(4) TEU). This also entails an assessment of the necessity of the measure, but also an analysis of its adequacy to achieve the desired objective, the latter implying a balance with competing interests.67
Any draft legislative act must contain a detailed statement enabling the appraisal of its compliance with the principles of subsidiarity and proportionality,68 even if the Early Warning System only applies to the principle of subsidiarity. Both qualitative and quantitive indicators should substantiate the conclusion that the objective can be better attained at the European Union level.69 In fact, this forms the procedural dimension of the principle of subsidiarity,70 in comparison with the substantive part of the principle, explained above.
65
Protocol (No 1) on the Role of National Parliaments in the European Union, Article 3.
66 Communication from the Commission to the European Parliament, the Council and the National Parliaments
on the review of the proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office with regard to the principle of subsidiarity, in accordance with Protocol No 2, COM(2013)851 final,
Brussels 27-11-2013, p. 4 [online]; Cygan, op. cit., p. 484. 67
Fabbrini and Granat, “Yellow card, but no foul”: the role of the National Parliaments under the subsidiarity
protocol and the Commission proposal for an EU regulation on the right to strike, Common Market Law
Review 2013/50, p. 123 [online]. 68
Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality, Article 5. 69 Craig and de Burca, EU Law: Text, Cases, and Materials, 2011, p. 96.
16
(B) The yellow and orange cards
Within eight weeks from the date of the forwarding of a draft legislative act, any national Parliament or any chamber of a national Parliament may submit a reasoned opinion to the Commission, the Presidents of the European Parliament and the Council where it states why it considers that a European draft legislative act does not comply with the principle of subsidiarity.71 Each national Parliament has in fact two votes while in the case of bicameral systems, each of the two chambers has one vote.72 Since the EU is now composed of 28 Member States, this is a total of 56 votes.73 Provided that at least one-third of the available votes are cast against the draft legislative act because of non-compliance with the subsidiarity principle,74 the initiating institution must review its proposal and may decide to maintain, amend or withdraw the draft act but must justify its decision. Accordingly, there is no mandatory obligation that the proposal should be amended or withdrawn. It is the so-called “yellow procedure”.75
According to the “orange card” procedure,76 only applicable to the ordinary legislative procedure, if a simple majority of the votes allocated to national Parliaments is reached, the proposal for the legislative act must be reviewed. Whereas the Commission may maintain, amend or withdraw its proposal, it has however to provide justification - through a reasoned opinion - if it decides to maintain its proposal. Moreover, in this latter case, the reasoned opinions issued by the national Parliaments and the Commission are transmitted to the Union legislator which will consider the subsidiarity issues before the end of the first reading stage. The proposal will then fail if, by a majority of 55 % of the members of the Council or a majority of the votes cast in the European Parliament, the proposal is deemed to be incompatible with the subsidiarity principle.
70
Fabbrini and Granat, op. cit., p. 125; Kiiver, The conduct of subsidiarity checks of EU legislative proposals by
national parliaments: analysis, observations and practical recommendations, ERA Forum 2012/12, p. 545
[online].
71 Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality, Article 6. 72 Ibid., Article 7(1).
73 Ibid.
74 For draft legislative acts in the area of freedom, security and justice, the threshold is one-quarter of the votes (Article 7(2) of the Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality). 75
Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality, Article 7(2). 76 Ibid., Article 7(3).
17
A posteriori, the infringement of subsidiarity can be invoked before the European Court of
Justice by the Member States (under Article 263 TFEU) but the action can also be notified by the State on behalf of its national Parliament.77 This is sometimes referred to as the “red card”.78
However, there have been fewer than 20 challenges for breach of subsidiarity, while it appears difficult to strike down legislation on subsidiarity, except on the basis of procedural grounds.79
It is noteworthy that this Early Warning Mechanism does not cover delegated or implementing acts legislation nor does it apply to the exclusive competences.80 Furthermore, since it is difficult to separate the principle of subsidiarity from the principle of proportionality, it is regrettable that the reasoned opinion may only be related to the former.81 It also stems from these procedures that the EU legislators still have the last word whereas the thresholds are quite difficult to attain.82 In consequence, this mechanism implies an inter-parliamentary cooperation whereby national Parliaments would engage in a close and regular dialogue, including with the European Parliament.83 This can be achieved through for instance the COSAC or via informal initiatives such as the IPEX database,84 a platform designed for the mutual exchange of information between the national Parliaments and the European Parliament on issues related to the European Union. Eventually, regarding the eight-week time frame, national Parliaments have to act quickly in order to ensure the subsidiarity monitoring. This may involve problems of time and resources, despite notably the exchanging information work of the permanent representatives of national Parliaments to the European Union in Brussels and the existence of the European Affairs Committees.85 However, other
77 Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality, Article 8. See, in addition, on the light intensity of the judicial review: Craig and de Burca, op. cit., p. 98-100. See for a critical analysis and the arguments for judicial review brought directly by national Parliaments: Cygan, op. cit., p. 488. 78 Paulo, National Parliaments in the EU: after Lisboa and beyond subsidiarity. The (positive) side-effects and
(unintended) achievements of the Treaty provisions, OPAL 2012/5, p. 6 [online].
79 Goldoni, Reconstructing the early warning system on subsidiarity: the case for political judgment, E.L. Rev. 2014/39(5), p. 652 and 661 [online]; see notably ECJ 13-05-1997, Germany v European Parliament and
Council, Case C-233/94.
80 Craig and de Burca, op. cit., p. 96. 81 Ibid., p. 97.
82 Cygan, op. cit., p. 485-486. 83
Ibid., p. 483.
84 See on this InterParliamentary EU information eXchange (IPEX):
http://www.ipex.eu/IPEXL-WEB/home/home.do. 85
Stratulat, op. cit., p. 4; Cygan, op. cit., p. 492; Paulo, op. cit., p. 9. See on the role of these national permanent representatives: Paulo, op. cit., p. 13-17.
18 Scholars argue that the political motivation is a decisive factor in the involvement of national Parliaments in the EWS.86
IV. The Early Warning System in practice
Through this chapter, an important distinction has to be made between, on the one hand,
reasoned opinions and, on the other hand, opinions.87 The reasoned opinions are issued in the framework of the Early Warning System and exposed the arguments upon the basis of which Member States claim a breach of the principle of subsidiarity. By comparison, opinions are sent by Member States in the framework of the political dialogue, launched by the Barroso Initiative in 2006, and express criticisms on both the form and substance of the legislative proposals and non-legislative initiatives.88
Here only reasoned opinions issued in the framework of the EWS are analysed while we focus on the substance and real content of these reasoned opinions. In addition, we especially look for reasoned opinions which are mainly motivated by legal and policy arguments but are still counted for the purpose of the Early Warning Mechanism.
1. General overview
According to the latest available figures,89 the number of reasoned opinions has steadily increased over the years: 34 in 2010, 64 in 2011, 70 in 2012 and 88 in 2013.90 By contrast, much more opinions have been issued in the framework of the political dialogue platform,
86
See on this argumentation, which notably analyses the parliamentary activity in terms of the dispersion of party political stances inside parliamentary chambers, the salience and urgency of draft legislative acts or the unfavourable economic conditions: Gattermann and Hefftler, Beyond Institutional Capacity: Political Motivation
and Parliamentary Behaviour in the Early Warning System, West European Politics 2015/38(2), p. 305-334
[online].
87 Paulo, op. cit., p. 10; Conference of Speakers of European Union Parliaments, Session II – Five Years after the
Coming into Force of the Treaty of Lisbon: Lessons of Subsidiarity Checks in Parliaments, Vilnius 6-8 April
2014, p. 4 [online].
88 Report from the Commission, Annual Report 2013 on relations between the European Commission and
National Parliaments, COM(2014) 507 final, Brussels 05-08-2014, p. 2 [online].
89 Report from the Commission, Annual Report 2013 on subsidiarity and proportionality, COM(2014) 506 final, Brussels 05-08-2014 [online]. However, the figures may bizarrely differ: Conference of Speakers of European Union Parliaments, Session II – Five Years after the Coming into Force of the Treaty of Lisbon: Lessons of
Subsidiarity Checks in Parliaments, Vilnius 6-8 April 2014, p. 2 [online].
90 See the Report from the Commission, Annual Report 2012 on subsidiarity and proportionality, COM(2013) 566 final, Brussels 30-07-2013 [online]. However, according to the Co-ordinator for Inter-Institutional Relations, only 21 reasoned opinions were issued in 2014.
19 thus not only covering subsidiarity issues.91 From the entry into force of the Early Warning System to the end of December 2013, 1546 (reasoned and “ordinary”) opinions were sent to the Commission on a total of 439 legislative acts submitted to the national Parliaments. Only 276 of these submissions were reasoned opinions.92 For instance, in 2013, 533 opinions were sent to the Commission by the Member States whereas only 88 of these submissions were reasoned opinions.93 In total, an average of 600 opinions is forwarded to the EU per year, of which around 14% are reasoned opinions.94
In 2012, the first yellow card has been triggered after 12 out of 40 national Parliaments (19 votes out of 54 votes) invoked a breach of the subsidiarity principle on a proposal for a Council Regulation on the right to take collective action within the context of the freedom of establishment and the freedom to provide services (the so-called Monti II proposal).95 The purpose of the proposal was to regulate the question of transnational industrial action while addressing the challenge of protecting the right to strike in the context of the EU internal market. In that case, the national Parliaments argued that this specific matter would be better regulated at national level, especially regarding the implications that such a proposal would have on the right to strike.96 The Commission ultimately withdrew its proposal, not on the basis of the principle of subsidiarity but due to a wide political opposition to the proposal.97
Then, in 2013, a second yellow card was triggered as 11 chambers opposed the Commission’s initiative on the European Public Prosecutor’s Office.98
The aim was to institute an authority with a decentralised structure which would co-ordinate all investigations on frauds against the European Union. Since the proposal was submitted in the area of freedom, security and justice, a quarter of the votes were required to trigger the yellow card. In that case, the Commission decided to maintain the proposition, considering that the proposal complied with
91 Paulo, op. cit., p. 6: from 2006 to 2011, a total of 1725 opinions were sent by national Parliaments to the Commission.
92 Report on “Interparliamentary relations between the European Parliament and national Parliaments under the Treaty of Lisbon” 2009-2014, Annual Report 2013/2014, p. 16 [online].
93 Report from the Commission, Annual Report 2013 on relations between the European Commission and
National Parliaments, COM(2014) 507 final, Brussels 05-08-2014, p. 10-11 [online].
94 Ibid., p. 4.
95 COM(2012)130, Brussels 21-03-2012 [online via
http://www.ipex.eu/IPEXL-WEB/dossier/document/COM20120130.do]. 96 Paulo, op. cit., p. 3 and 7-8.
97
Conference of Speakers of European Union Parliaments, Session II – Five Years after the Coming into Force
of the Treaty of Lisbon: Lessons of Subsidiarity Checks in Parliaments, Vilnius 6-8 April 2014, p. 2 [online].
98 Stratulat, op. cit., p. 4. See the Proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office, COM(2013)534 final, Brussels 17-07-2013 [online via http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52013PC0534&rid=1].
20 the subsidiarity principle.99 It should be mentioned that no orange card has been triggered so far.
2. Behind the “subsidiarity label”
We first find interesting to present the arguments of some Scholars on the interpretation to be given to the Early Warning Mechanism. Furthermore, we provide an analysis of the content of some of the reasoned opinions submitted by the national Parliaments since the entry into force of the Lisbon Treaty. In that regard, we have specifically identified the reasoned opinions where arguments put forward were more linked to the adequacy of the legal basis, to the principle of proportionality and to the substance or subject matter of the EU proposal, rather than to the question of whether the proposed act should be adopted for better efficiency at the EU level or not. The selected reasoned opinions for each year since the entry into force of the Early Warning System especially concern EU proposals that have elicited a sufficient amount of reasoned opinions,100 creating a type of critical mass.
2.1. For a normative appraisal of the EWS
Some Scholars, like Goldoni, argue for a political interpretation of the Early Warning System “because its function is the expression of a power which is political in nature”.101
Thereby, the emphasis is put on the impact of European integration on national constitutional functions, namely the weakening of national representative politics and the further distance between civil society and the political representative system.102 Against that background, the EWS, aimed at regulating the distribution of shared competences between the EU and MS, has to be interpreted as a political tool in order to protect ungrounded and unnecessary appropriation of competences from the EU.103 Along the same lines, Cygan and Cooper point out that, ultimately, the question of subsidiarity is “a political judgment decided by political actors and
99 Communication from the Commission to the European Parliament, the Council and the National Parliaments
on the review of the proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office with regard to the principle of subsidiarity, in accordance with Protocol No 2, COM(2013)851 final,
Brussels 27-11-2013, p. 13 [online]. 100
Except for 2014.
101Goldoni, Reconstructing the early warning system on subsidiarity: the case for political judgment, op. cit., p. 656.
102
Ibid., p. 655. 103 Ibid., p. 648.
21 institutions and based upon the application of necessity and efficiency” 104 and “while subsidiarity is sometimes called a technical or legal question, it is also irreducibly political”.105
The argumentation is based upon both textual arguments and the practice of the EWS. Indeed, Treaty and Protocols do not exclude this type of interpretation since a comprehensive reading of both Protocols together implies a more active and autonomous role for national legislatures.106 In other words, and regarding the direct exchange of information that is promoted between national Parliaments and the European institutions or the possibility to bring action in case of subsidiarity breach, “these Protocols open up the possibility of reviewing subsidiarity according to parliamentary politics (and not to executive policy-making).”107
Above all, it stems from the analysis of the reasoned opinions issued by the national Parliaments that the latter do not confine themselves to the review of subsidiarity but put forward other types of arguments. Although some of them are purely legal and discuss the legal basis of the proposal, others are more political in nature and discuss the substance itself of the legislative proposals.108
While also supporting a broad interpretation of the subsidiarity control, Kiiver encourages the inclusion by the national Parliaments of the legal basis and proportionality in their subsidiarity review.109 This point of view seems however above all politically motivated.
In contrast with this broad interpretation of the principle of subsidiarity, other Scholars, like Fabbrini and Granat, argue that the EWS should be interpreted in a formal manner.110 Their opinion is based upon textual, structural and functional arguments. In brief, they point out that Protocol No 2 only grants to national Parliaments the right to monitor compliance with
104 Cygan, Accountability, Parliamentarism and Transparency in the EU: The Role of National Parliaments, Edward Elgar 2013, p. 145.
105 Cooper, A “Virtual Third Chamber” for the European Union? National Parliaments after the Treaty of
Lisbon, West European Politics 2012/35(3), p. 460 [online].
106 Goldoni, op. cit., p. 657. 107 Ibid., p. 658.
108
Ibid., p. 654.
109 Kiiver, The Early Warning System for the Principle of Subsidiarity. Constitutional Theory and Empirical
Reality, 2012, p. 98-100.
22 subsidiarity. Secondly, national Parliaments should not become a third legislative chamber at the EU level since it was not the intention of the Treaty framers to grant substantive legislative powers to national Parliaments.111 Eventually, national Parliaments are not the most suitable bodies to examine the content of a legislative draft, its proportionality or the correctness of its legal basis.112 Accordingly, the scope of the parliamentary control should exclusively be limited to the review of the principle of subsidiarity and to the question of whether the measure ought to be adopted at EU level rather than at national level since the objective of the proposed action could be better achieved by a European measure.113
2.2. Reasoned opinions beyond the question of subsidiarity
However, the purpose of our thesis is not to make a normative judgment on how should be interpreted the Early Warning System. We only confine ourselves to the analysis of the related practice and identify the cases where under the subsidiarity principle, national Parliaments put forward arguments that are not purely linked with the principle of subsidiarity but are also related to the adequacy of the legal basis, the principle of proportionality or the substance of the proposal.
A first example can be taken from the Commission proposal to regulate seasonal workers, in 2010, aiming to standardise the procedure for admitting seasonal workers and to define minimum standards and which has elicited a total of 9 reasoned opinions (the highest number for this year).114 For instance, the Austria Bundesrat explicitly went beyond considerations on subsidiarity by notably claiming that the legal basis is inadequate, by affirming that the desired effect is disproportionate to the negative effects or by stating that the proposed Directive on the whole is not likely to help create a better legal framework for seasonal workers.115 For its part, the Czech Senate has drawn the Commission’s attention to the possible detrimental effects that this proposal could produce on the national labour systems.116
111
Fabbrini and Granat, op. cit., p. 121-122. 112 Ibid., p. 121-123.
113 See on the material and procedural dimensions of the principle of subsidiarity: Fabbrini and Granat, op. cit., p. 124-125.
114 COM(2010) 379. See also for a review of the reasoned opinions submitted to the Commission with respect to that proposal: Report from the Commission, Annual Report 2010 on subsidiarity and proportionality, COM(2011) 344 final, Brussels 10-06-2011, p. 7 [online].
115 Reasoned opinion of the Austrian Bundesrat, 05-10-2010, paras 6, 9 and 11. 116
Reasoned opinion of the Czech Republic Senate (Senát Parlamentu České republiky), 22-09-2010; Goldoni,
23 In 2011, the Commission’s proposal for a Council Directive for a common consolidated corporate tax base117 has collected 13 negative reasoned opinions. In this case, the Swedish
Riksdag challenged the legal basis, but also invoked the undermining of the sovereignty of the
Member States regarding the retention of sufficient tax revenues to finance welfare, which is more a policy consideration.118 For the Polish Sejm, the European Union had not the competence to adopt such legal acts on direct taxation, which is different from the issue of subsidiarity (only arising in case of shared competences).119
The Commission proposed in 2012 a Regulation on the fund for European aid to the most deprived.120 This proposal elicited a total of 5 reasoned opinions. In essence, these Parliaments considered that there was a lack of sufficient overall justification especially given that Member States are competent for the social security system and whereas the aid should have been part of it.121 Furthermore, the German Bundestag added that the legal basis cited by the Commission does not include a competence for combating poverty whereas the proposed regulation also violates the proportionality principle.122
Then, as far as the Commission legislative proposal on the exercise of the right to take collective action is concerned, which led to the triggering of the first yellow card, most of the legislatures which have issued a reasoned opinion have in fact invoked political and substantive arguments in the context of the EWS and the control of the principle of subsidiarity.123
In this case, some parliaments challenged the legal basis of the Commission proposal and more specifically the application of the flexibility clause (Art. 352 TFEU) and Article 153 TFEU. For example, the Belgian Chambre des Représentants,124 the Luxembourg Chambre
117 COM(2011) 121. See also for a review of the reasoned opinions submitted to the Commission with respect to that proposal: Report from the Commission, Annual Report 2011 on subsidiarity and proportionality, COM(2012) 373 final, Brussels 10-07-2012, p. 8 [online].
118 Reasoned opinion of the Swedish Riksdag, 11-05-2011. 119 Reasoned opinion of the Polish Sejm, 13-05-2011. 120 COM(2012) 617.
121 Goldoni, op. cit., p. 659; Reasoned opinion of the Danish Folketing, 14-12-2012; Reasoned opinion of the British House of Lords, 12-12-2012, para. 10.
122 Reasoned opinion of the German Bundestag, 12-12-2012. 123 Goldoni, op. cit., p. 652; Fabbrini and Granat, op. cit., p. 135-139. 124
Reasoned opinion of the Belgian Chambre des Représentant de Belgique, 30-05-2012 (Avis de subsidiarité, DOC 53 2221/001).
24
des Députés125 and the Portuguese Assembleia da República126 challenged the use of the flexibility clause. The Luxembourg Parliament, like the French Sénat,127 the Maltese Kamra
tad-Deputati128 and the Portuguese Assembleia da República,129 also noted that the right to take collective action, as well as the right to strike are explicitly excluded by Article 153(5) TFEU from European legislation and that, in consequence, harmonization is excluded under Article 352(3) TFEU.130 Moreover, the proportionality of the proposal was challenged notably by the Maltese and Finnish Parliaments which questioned the necessity of the measure to achieve the goals of the EU action.131 Furthermore, some national Parliaments expressed concerns about the content of the proposal. By example, the Dutch Tweede Kamer pointed out that the proposal might destroy well-functioning national arrangements in the area of labour law.132 Likewise, Article 3 of the proposal on the dispute settlement procedures raised concerns as many Parliaments found the change of the existing national mechanisms of dispute settlement unnecessary.133 Eventually, the content of the proposed regulation was challenged as for its implications on other international tools related to the protection of social rights.134
In a nutshell, arguments extending beyond the question of subsidiarity were invoked by national Parliaments such as the lack of legal basis, the infringement of the principle of proportionality and concerns about the content itself of the proposal. Overall, national Parliaments considered that labour law, which is part of their core competences, should remain a national question.135
What is striking in that case is that the principle of subsidiarity did not appear to have been violated notably given the cross-border dimension of the transnational labour disputes.136 In that regard, the Commission stated that, if in its opinion the proposal complies with the
125 Reasoned opinion of the Luxembourg Chambre des Députés, 15-05-2012. 126
Reasoned opinion of the Portuguese Assembleia da República, 18-05-2012.
127 Reasoned opinion of the French Sénat, 22-05-2012 (Résolution Européenne portant avis motivé, N°119). 128 Reasoned opinion of the Maltese Kamra tad-Deputati, 22-05-2012, paras 1-2.
129 Reasoned opinion of the Portuguese Assembleia da República, 18-05-2012, Part II, a). 130
Reasoned opinion of the Luxembourg Chambre des Députés, 15-05-2012.
131 See the reasoned opinion of the Finnish Eduskunta, 16-05-2012 (Report of the Grand Committee, Su VM 1/2012 vp – M 2/2012 vp) and the reasoned opinion of the Maltese Kamra tad-Deputati, 22-05-2012.
132 Reasoned opinion of the Dutch Tweede Kamer, 22-05-2012, p. 2.
133 Reasoned opinion of the Danish Folketing, 03-05-2012, Ref. 12-000337-3; Reasoned opinion of the Dutch
Tweede Kamer, 22-05-2012, p. 1; Reasoned opinion of the Maltese Kamra tad-Deputati, 22-05-2012, para. 22.
134 Fabbrini and Granat, op. cit., p. 138.
135 See the reasoned opinion of the Belgian Chambre des Représentant de Belgique, May 30, 2012, DOC 53 2221/001: the labour law is a national question “par excellence”; Goldoni, op. cit., p. 660.
25 principle of subsidiarity, the possible lack of political support within the European Parliament and the Council led it to withdraw the proposal.137
Regarding the Commission’s initiative in 2013 on the European Public Prosecutor’s Office - which has triggered the second yellow card -, a closer look at the content of the reasoned opinions shows that arguments invoked are not always related to the principle of subsidiarity.138 Indeed, some national Parliaments, like the Dutch Eerste Kamer, argued that competences in criminal investigations and prosecutions should above all remain national competences as these questions are related to the national sovereignty.139 In our opinion, those considerations are not linked to the question of whether the EU fraud can be better fought at the EU level or not. Beyond the question of subsidiarity, other national Parliaments emphasized that the fundamental rights of suspects were not sufficiently guaranteed by the proposal140 or pointed out a breach of the principle of proportionality.141 In general, the exclusive competence attributed to the Office over cross-border and purely national cases raised concerns.142 However, the Commission maintained its proposal and the latter received the European Parliament’s approval on 12 March 2014 but has still to be unanimously adopted by the Council unless an enhanced cooperation takes place.143
In short, with regard to the reasoned opinions issued in 2014, national Parliaments have still put forward arguments going beyond the scope of subsidiarity. For instance, the Austrian
Bundesrat144 invoked a breach of the principle of proportionality regarding a proposal for a Directive on the waste management.145 With respect to a proposal for a Directive on the
137 See the letter by President Barroso to the President of the European Parliament, Mr Martin Schulz, Memo 12/661, 09-2012, p. 6 and the letter from the Commission to the House of Commons, Ares(2012)1058907, 12-09-2012.
138 For a confirmation by the Commission itself: Communication from the Commission to the European Parliament, the Council and the National Parliaments on the review of the proposal for a Council Regulation on
the establishment of the European Public Prosecutor's Office with regard to the principle of subsidiarity, in accordance with Protocol No 2, COM(2013)851 final, Brussels 27-11-2013, p. 5 [online].
139 See notably the Reasoned opinion of the British House of Lords, 28-10-2013, para. 13 or the Reasoned opinion of the Dutch Eerste Kamer, 17-10-2013.
140
Reasoned opinion of the Czech Republic Senate (Senát Parlamentu České republiky), 09-10-2013. 141 Reasoned opinion of the Cyprus House of Representatives (Temsilciler Meclisi), 23-10-2013.
142 Reasoned opinion of the Dutch Eerste Kamer, 17-10-2013; Reasoned opinion of the British House of Lords, 28-10-2013.
143 European Commission, European Public Prosecutor's Office: European Parliament confirms its support, Memo 12-03-2014 [online via http://europa.eu/rapid/press-release_MEMO-14-183_fr.htm]. It should be noted that Denmark will not participate in the European Public Prosecutor's Office while the UK and Ireland have decided not to opt-in.
144
Reasoned opinion of the Austrian Bundesrat, 18-09-2014. 145 COM(2014) 397 final.
26 activities and supervision of institutions for occupational retirement provision,146 the Dutch
Tweede Kamer claimed that pension systems are primarily national responsibilities and
competences.147 Eventually, the Luxembourg Chambre des Députés has concluded regarding a proposal for a Regulation on organic production and labelling of organic products148 that this proposal violated both the principles of subsidiarity and of proportionality.149
2.3. The normative perception of the actors
Following the process of identification of a possible new constitutional conventional rule, we have decided to directly question both the national Parliaments and the Commission on their views on the practice according to which not only arguments related to the subsidiarity principle, but also legal and policy arguments are put forward in the reasoned opinions. Below are presented all the replies that we received in April and May 2015. Other reports and documents are also taken into account in order to try to gauge their opinion on the practice related to the Early Warning Mechanism.
(A) Questions asked
As far as the national Parliaments are concerned, we have decided to ask the contact persons provided by IPEX (the platform for EU Interparliamentary Exchange), each representing a national Parliament on EU affairs. After explaining that I am working on the possible emergence of a new rule according to which national Parliaments would tend to issue reasoned opinions not only based on a breach of the principle of subsidiarity but which are more politically motivated, as it was the case, for example, for the Monti II proposal, the questions asked were: “What is your opinion on this possible practice? In your opinion, does your national Parliament tend to include in its reasoned opinions arguments notably related to the legal basis, the principle of proportionality or the content of the EU proposal? If so, is this practice deliberate?”
As for the Commission, the questions were sent to the General-Secretariat, notably dealing with the Inter-Institutional Relations, and were formulated as follows: “Besides the published
146 COM(2014) 167.
147 Reasoned opinion of the Dutch Tweede Kamer, 15-05-2014. 148
COM(2014) 180.
