In or out of control? National parliamentary scrutiny on the transposition of EU directives

(1)

UNIVERSITEIT LEIDEN

MASTER THESIS PUBLIC ADMINISTRATION EUROPEAN GOVERNANCE TRACK

In or out of control?

National parliamentary scrutiny on the

transposition of EU directives.

Erik Hutten

0961213 09/06/2016

Supervision: R. de Ruiter Second reader: J. Schalk

Abstract

During the last decades the ongoing European integration has been a large challenge for national parliaments. Some scholars consider parliaments the ‘losers’ of European integration. Studies on the involvement of national parliaments in EU affairs have however primarily focused on their involvement in the decision making stage, while national parliaments can also have influence on EU policies in the transposition stage and consequently enhance the legitimacy and effectiveness of EU policies. This thesis therefore focuses on the transposition stage and explores the conditions under which national party groups engage in ex post scrutiny in parliamentary committees. A qualitative analysis is conducted on the parliamentary involvement in the transposition of seven EU directives. The findings firstly show that party groups engage more in scrutiny when a directive is salient, especially in terms of media attention. Second, opposition parties scrutinize EU directives more extensive and more critical than coalition parties do. Third, Eurosceptic parties are not unequivocally more active in ex-post scrutiny than their more pro-European counterparts. The findings furthermore suggest that a party’s size in parliament is related its scrutiny activity, and that the chosen transposition instrument matters for the degree of parliamentary scrutiny.

(2)

Content

1. Introduction ... 3 2. Theoretical Framework ... 6 4. Research Design ... 12 4.1 Method ... 12 4.2 Country Selection ... 12 4.3 Dependent variable ... 13 4.4 Independent variables ... 14 4.5 Case Selection ... 18 4.6 Control variable ... 20

5. The Family Reunification Directive ... 22

5.1. Background of the directive... 22

5.2 Salience of the Directive ... 24

5.3 Ex ante scrutiny ... 24

5.4 Ex post scrutiny ... 26

5.5 Analysis ... 27

6. The Data Retention Directive ... 29

6.1 Background of the Directive ... 29

6.5 Analysis ... 34

7. The Battery Directive ... 35

7.1 Background ... 35

7.5 Analysis ... 38

8. The Services Directive ... 39

8.5 Analysis ... 44

(3)

9. The Flag State Directive ... 45

9.5 Analysis ... 47

10. The Non-Automatic Weighing Instruments Directive ... 48

10.5 Analysis ... 49

11. Translation and Interpretation Directive ... 50

11. 1 Background ... 50

11.3 Ex ante scrutiny ... 51 11.4 Ex post scrutiny ... 51 11.5 Analysis ... 53 12. Discussion ... 55 13. Conclusion ... 60 References ... 62 Sources ... 65 2

(4)

1. Introduction

Over the last decades, the ongoing European integration has been a large challenge for the national parliaments of EU member states. Many of the traditional powers of national parliaments were transferred to the supranational and intergovernmental level. This has subsequently raised questions about the balance of power between the national legislative and executive and the EU’s democratic quality (e.g. Auel, 2006, 2007; Auel & Benz, 2005). Some scholars have argued that national parliaments have become the “losers” of European integration (Maurer & Wessels, 2001), while others stress that national parliaments have maintained or even enhanced their position within the multi-level governance system of the European Union and thus “fought back” more or less successfully (Raunio & Hix, 2000).

The national parliaments of all Member States of the European Union carry out some degree of control over EU affairs. First, they can control EU decision making ex ante. They can influence negotiation positions in the Council of Ministers (Dörrenbächer, Mastenbroek, & Toshkov, 2015, p. 1; Karlas, 2012) or use the Early Warning Mechanism for direct scrutiny of proposed legislation (De Ruiter, 2013). Second, they can control the ratification of changes in EU treaties, and third, they can use ex post mechanisms of control to scrutinize the transposition of EU directives into national law (Karlas, 2012, p. 1095).

In the Council of Ministers, governments decide legislation that is binding in the member states. Only in the case of directives, member states are granted a prescribed range of discretionary freedom with regard to the specific instruments they choose to reach the goals of the directive. Member states are obliged to transpose the directives into domestic law, usually within a given timespan which is around two years on average. Directives can be transposed by adopting executive decrees or they can take the form of a national law and thereby involve parliaments. In fact, the majority of transposition acts are executive decrees (König, 2007; Sprungk, 2013, p. 304). However, directives with a far-reaching impact on domestic legislation usually require national parliamentary transposition (Sprungk, 2013, p. 298). Directives are often characterized as textual vague, because Member States often only agree on the lowest common denominator during the negotiations. Conflicting interests then lead to an ambiguous text, resulting in a wide margin of discretionary freedom for national transposition actors regarding the methods used to achieve the directive’s goals. Governments then have considerable leeway to transpose directives according to their own preferences and it is the task of national parliamentarians to scrutinize the transposition process and make sure the directive is transposed in accordance with the preferences of the majority in parliament.

(5)

The focus of the literature on executive-legislative relations in the EU has primarily been on the involvement of national parliaments during policy making (Finke & Dannwolf, 2013; Goetz & Meyer-Sahling, 2008; Raunio, 2009; Winzen, 2013). Controlling the government in the EU decision making stage is indeed an important task for national parliamentarians, but since the influence of national parliaments on EU-decision making is limited with 28 member states deciding on the issue, it may not be the most effective way to achieve their preferences (Mastenbroek, Spendzharova, & Versluis, 2014). Scrutiny ex post, i.e. in the phase after an agreement has been reached at the European level, is equally important, if only because national executives could deviate from parliamentary preferences in the transposition of directives. Overlooking the role of parliaments in the transposition stage might lead to an underestimation of parliamentary influence in EU affairs and to an overestimation of the EU’s democratic deficit (Dörrenbächer, 2013, p. 1). However, the involvement of parliaments in the transposition of EU directives into national law has received little attention and remains to a large extent unknown (but see Dörrenbächer et al., 2015; Mastenbroek et al., 2014; Sprungk, 2013).

This thesis seeks to contribute to this gap in the literature, by analyzing the reasons why national parliamentary party groups scrutinize the transposition of certain EU directives into national law, whereas the transposition of other directives remains unchecked. The research question that will be addressed in this thesis is: How can we explain the degree of scrutiny of the transposition of EU directives by political party groups in parliamentary committees of national parliaments? The unit of analysis in this thesis is thus political party groups.

In order to answer the research question, this thesis conducts a qualitative analysis of the parliamentary scrutiny on the transposition of seven EU directives in the Netherlands. Understanding the specific Dutch situation may provide insights into the general nature of the processes taking place in other EU Member States as well. Hypotheses are based on principal-agent theory and the rationalist approach to parliamentary involvement. The possible reasons for the occurrence ex post scrutiny tested in this thesis are the salience of a directive, the role of a parliamentary party group vis-à-vis the executive and its conception on EU integration. Cases are selected using a most different case selection approach. Scrutiny interventions were analyzed using the ‘ladder of scrutiny’ from Mastenbroek et al. (2014). Only scrutiny interventions in parliamentary committees are studied, because parliamentary scrutiny of EU affairs in the Netherlands has shifted over the last decades from plenary to committees

(6)

(Högenauer, 2015), however scrutiny in parliamentary committees has not been studied extensively by scholars so far. Besides time-related considerations played a role.

This thesis has practical significance, because gaining more knowledge about the role national parliaments play during the transposition of directives can be helpful in assessing the democratic quality of the EU. For members of national parliaments and party groups that are not represented by national ministers in the Council, national parliaments are the most important source to have influence in EU policy making. The voice of opposition parties is also not heard in the Commission and only weakly in the European Parliament (Holzhacker, 2002). There is no real traditional division between opposition and governing party roles in the EP, because the EP does not vote a European government into office in the same manner as national parliaments do (Holzhacker, 2005). With the inclusion of a wider range of actors, parliaments can help governments in taking into account the various preferences of their citizens (Karlas, 2012, p. 1096). The participation of members of national parliaments can thus increase the both the effectiveness and the legitimacy of EU policies. This could decrease the EU’s perceived democratic deficit.

This thesis first demonstrates that parliamentary party factions pay more attention to the transposition of salient directives than to directives that were not or only weakly salient. Second, opposition parties appeared to scrutinize the transposition of EU directives more extensively and more critical than the party factions of coalition parties. Third, Eurosceptic parties were not clearly more active in scrutiny ex post than parties with a more pro-European stance. Furthermore, party size seems to matter for the amount of attention parties pay to the transposition of EU directives.

This thesis starts with a chapter that sets out a theoretical framework based on agency-theory and the principal-agent model. The subsequent chapter sets out the research design, explaining the choices made concerning the method used, the country and the cases studied and the operationalization of the variables. Subsequently the empirical findings on the seven cases are described, followed by a chapter in which these are discussed. In the last chapter, the conclusions are set out.

(7)

2. Theoretical Framework

To understand why national political party groups are more active in ex post scrutiny of certain directives than others, we develop a set of hypotheses based on agency theory and the principal-agent model, which has also been the base of several important studies on parliamentary activity in EU affairs before (Auel, Rozenberg, & Tacea, 2015; Winzen, 2012). In this section, the principal-agent model is explained, which leads to the development of our three hypotheses.

In parliamentary democracies, the political executive serves first and foremost by the grace of the parliamentary majority. Legislatures delegate policy-making authority to ministers because of the need of expertise and because of practical constraints (Dörrenbächer et al., 2015). Delegation is however always risky, because delegators rely on agents who are not always reliable (Strøm, Müller, & Smith, 2010). The risk is that the person who delegates loses control instead of gets help and delegation in politics is no exception to that phenomenon. Policy drift and rent seeking activities of politicians may cause delegation fails (Strøm et al., 2010). In the former case, politicians pursue their own ideas, neglecting the preferences of their constituents. In the latter case, they use their political powers to gain personal advantages. Problems of democratic delegation have consequently brought about some of the most severe criticisms of modern democracies. Shleifer and Vishny (2002) for instance introduced the “grabbing hand” perspective, arguing that politicians strive to maximize their own self-interest, instead of furthering social welfare. Influential scholars of bureaucracy furthermore have argued that civil servants are also likely to act in ways that go against the preferences of the voters (Downs, 1967; Niskanen, 1974).

Cabinet ministers act as agents of both their parties in the legislature and the parliamentary majority more generally, which can be competing principals. If unchecked, ministers may propose policies in a manner closer to their own policy preferences than those of their coalition partners or their party members in the legislature. This could also occur in the transposition stage of directives. Effective accountability thus requires not only a formal obligation for the executive to serve the will of the parliamentary majority, but also appropriate mechanisms for the parliamentarians to control whether their agents meet this obligation and whether or not it must be enforced (Strøm et al., 2010).

There are several reasons why parliamentary scrutiny is especially relevant in EU politics. Ministers are only responsible for a specific sector in the Council and are therefore plausible preference outliers in the national cabinet. The sectoral nature of decision making in 6

(8)

the Council may increase the possibility for ministers to drift away from the preferences of the national cabinet (Dörrenbächer et al., 2015). Second, ministers have an informational advantage over other ministers and parliamentarians regarding EU legislation, because they have private information about the negotiations in the Council. They can use this strategically in the transposition stage. Third, EU policy issues are rarely part of coalition arrangements (Auel, 2007). Therefore, ministers are mostly not bounded to prearranged margins.

Ex post mechanisms of control can help political parties to control the behaviour of the

cabinet minister in office. They can lower the potential for hidden actions in coalition governments and thereby enforce cooperation in the coalition (Strøm et al., 2010). Monitoring might be the most evident way to secure this. However ‘police-patrol oversight’, which is ‘a proactive, direct, and continuous type of monitoring carried out by the principal itself’ (Oppermann & Viehrig, 2011, p. 7), is a complex operation, to which high costs and high sensibility for mistakes are bound. Principals have to put much effort in it and have to carefully assess the information they are supplied with. This difficulty could be caused by a lack of information, but also, and more often, by an oversupply that challenges the parliamentarian to oversee the use of several sources of information.

In order to avoid this difficulty, principals could also scrutinize in a reactive, indirect and selective manner, by making use of third party oversight, i.e. organizations or institutions that are not part of the relation between the agent and its principal (Oppermann & Viehrig, 2011; Strøm et al., 2010). Such parties, also referred to as ‘fire alarms’, must be incentivised to notify the principal about the agents’ actions. Interest groups could for instance be such a party, that has its own interest to inform parliamentarians or specific party groups about governmental decisions that deviate from the agreements reached beforehand or that have unforeseen opposite consequences (Strøm et al., 2010). By making use of ‘fire alarms’, principals like MPs can externalize most of their monitoring costs and focus only on the actions of their agents that were significant enough to cause a fire alarm. Because of this benefit of ‘fire alarm oversight’ principals generally rely on this form of monitoring (Oppermann & Viehrig, 2011). The most important sources of such fire alarms are the media, opposition parties and interest groups.

Parliaments thus play a crucial role in controlling governments and mitigating the trade-off between legitimacy and efficiency when it comes to implementing legislation (Finke & Dannwolf, 2013, p. 715). Surprisingly, scholars have paid little attention to the involvement of parliaments during the transposition of EU Directives. Scholars interested in Member

(9)

States’ compliance with EU Directives have studied the influence of parliamentary involvement on transposition outcomes, primarily on the timeliness of transposition (e.g. König & Luetgert, 2008; Mastenbroek, 2003; Toshkov, Knoll, & Wewerka, 2010), but they have focused mainly on indirect factors such as general institutional capacity or the chosen transposition instrument (e.g. Franchino & Hoyland, 2009). Only in recent years, scholars have shifted their attention to political incentives for parliamentarians to scrutinize the transposition of EU directives (e.g. Dörrenbächer et al., 2015; Mastenbroek et al., 2014; Sprungk, 2013).

In accordance with agency theorists, theories on party competition and issue salience specifically have shown that MPs weigh the costs and benefits when they choose which issues to scrutinise in parliamentary debates (De Ruiter, 2013, p. 1197; Miklin, 2014). The concept of salience is generally used to indicate the relative importance an actor attaches to an issue (Warntjen, 2012). It influences the ‘attention actors devote to an issue and the issue’s overall prominence in the minds of decision-makers’ (Oppermann & Viehrig, 2011, p. 3). Politicians are restricted by a limited capacity, resources and time to process information, so they have to be selective (Spendzharova & Versluis, 2013, p. 1502). For the same reason, principals like MPs generally rely on ‘fire-alarm oversight’, as discussed before. They weigh the costs and benefits of parliamentary activity in terms of policy influence, political sensitivity and votes, and they normally only put those issues on the agenda from which they expect to gain electoral advantage. It is thus assumed that the more salient a policy issue is for constituents, the more political parties are incentivised to engage in ex post scrutiny (De Ruiter, 2013; Mastenbroek et al., 2014; Miklin, 2014; Sprungk, 2013). Van Belle (1993) argues that decision makers only have to take electoral losses into account if they go against the preferences of their principals on issues which cross a certain ‘salience threshold’. Issues that do not cross this threshold are generally not scrutinized by MPs and decision makers thus have more leeway to transpose directives concerning such issues according to their own preferences. Oppermann and Viehrig (2011, p. 8) argue that as a consequence ‘(…) decision-making can be expected to follow an entirely different path in high-salience environments compared to low-salience environments’.

Salient directives experience a high level of political awareness at the EU level and as a consequence they are often the subject of partisan conflict in the European Parliament. Salient directives also receive more attention in media, sometimes as a consequence of a focusing event, which could for instance be a ‘fire alarm’ issued in the media by third parties like interest groups, opposition party groups or other stakeholders (Spendzharova & Versluis, 8

(10)

2013). Members of national parliaments are likely to attach more importance to salient directives (Finke & Dannwolf, 2015). When a policy issue is highly salient for the electorate and societal stakeholders, they will try to exert pressure on political parties to change the outcome of the transposition stage in the direction of their preferences (Mastenbroek et al., 2014). The following hypothesis can logically be derived from this reasoning.

H1: The more salient a directive, the more national parliamentary party groups engage in ex post scrutiny in parliamentary committees.

There are several different ways to operationalize the salience of directives. In the next chapter, the operationalization of issue salience used in this this thesis will be explained.

Drawing on the rationalist literature on the incentives of parliamentarians, it is assumed that the main incentive for members of national parliaments to scrutinize the transposition of EU directives is enhancement of their policy influence and ultimately re-election (De Ruiter, 2013; Finke & Dannwolf, 2013; Gattermann & Hefftler, 2015; Mastenbroek et al., 2014). Political parties logically pursue policies that are compatible with their substantive preferences. From this perspective, it is more likely that parties scrutinize transposition when the policy proposed by the cabinet is not in line with their preferences (Dörrenbächer et al., 2015; Finke & Dannwolf, 2013; Sprungk, 2013; Strøm et al., 2010). This is why the literature expects coalition parties to be less incentivised to scrutinize transposition than opposition parties, which have incentives to openly disagree with the government (Auel, 2007; Mastenbroek et al., 2014). Governing parties have the incentive to stabilize and maintain the government during a parliamentary period, and want their party to be re-elected in the next elections. It is unlikely that coalition parties openly turn against the government it supports. MPs might worry about their chances of re-selection and election if the use of their legislative review power involves public disagreement with their party leadership (Gattermann & Hefftler, 2015). On the other hand, the parliamentary opposition is expected to openly challenge the government’s proceedings, and monitor and control the government’s implementation of policies, especially if the policies are important to their electorate. They may succeed in pushing the implementation of government in the direction of their own preferences and by doing so weaken the coalition and achieve early elections (Holzhacker, 2002).

(11)

In domestic politics research, it is therefore well-accepted that the in theory supposed functioning of the parliamentary system as a ‘two body image’ in which the parliament controls the government, is in fact fiction (Auel, 2007). Because the stability and effectiveness of the government depend largely on the support of their parliamentary majority, a clearer division is visible in practice between the government and its supportive majority on the one hand, and the parliamentary opposition on the other (Auel, 2007; Wiberg, 1995). If this observation of parliamentary behaviour were correct, then one would not expect much ex

post scrutiny from the parties in government (Dörrenbächer et al., 2015, p. 2). Compared to

domestic politics we can however expect less loyalty in European issues from the supportive majority, because the issues on the agenda do not stem from a programme agreed by the governmental majority, as national issues mostly do, but from the European politics level.

De Wilde (2011) endorses the partisan scope of conflict of ex post scrutiny. He emphasizes considerable differences between scrutiny ex ante and scrutiny ex post. Before the final decision making stage has been reached, national parties could collectively take a stance, in order to defend national interests against those from other member states. Debates ex ante, could thus take a more intergovernmental scope of conflict, when domestic political parties agree on the nation’s best interest and mainly debate the best means to reach this. Debates ex

post however, are more characterized by a partisan scope of conflict, in which domestic

political parties express different opinions on the pro- anti-integration and/or left- right dimension (De Wilde, 2011). Conflicting conceptions of governmental and opposition parties are then more likely. The second hypothesis is therefore:

H2: Opposition party groups engage more in ex post scrutiny in parliamentary committees than party groups of government parties.

There is however also an opposite argument present in the literature. Dörrenbächer et al. (2015) for instance argue that conflict between coalition partners could be an important condition for parliamentary scrutiny to occur. They argue that the scrutiny activity of coalition parties during transposition is greater than what would be expected on the basis of the prevailing opinion on the ex ante scrutiny that coalition partners are reluctant to use their powers in order to prevent a loss of the coalition’s credibility and a defeat of the governmental bill, as suggested by Auel (2007).

(12)

From a vote-seeking perspective EU directives have not always been relevant for MPs, because EU issues were seen as technical issues without many electoral benefits (Raunio, 2009). But in recent years the increasing politicization of European integration has changed this situation (De Wilde & Zürn, 2012). Political parties have actively put European issues on the agenda, in order to encourage Euroscepticism and acquire electoral benefits (Mastenbroek et al., 2014). Hooghe and Marks (2009) have argued that this politicization of European integration has changed the political climate from a ‘permissive consensus’ to a ‘constraining dissensus’. Mainstream political parties are however reluctant to place the issue of EU integration on the domestic political agenda, because it is not in line with the left-right logic and it therefore risks disagreement within the party (Hooghe & Marks, 2009). On both sides of the political spectrum smaller radical political parties with a cohesive stance are more incentivised to become active on EU issues, with the purpose of being rewarded for their EU scrutiny by their electorate at the next elections (Gattermann & Hefftler, 2015; Green‐ Pedersen, 2012; Mastenbroek et al., 2014). Green‐Pedersen (2012) found that mainstream political parties only have an incentive to put a European issue on the agenda if the issue offers a clear electorally winning position, and if the issue can be integrated into the left-right structure of domestic party competition.

Conflicting conceptions about European integration in parliaments might thus be a relevant explanatory factor for the actual engagement in scrutiny by MPs. Ex post scrutiny may be a means used by political parties to indicate the negative consequences of European integration and benefit from the fueled Eurosceptic sentiments among voters. Therefore, we expect that party conflicts concerning EU integration have an influence on the activity of parliaments in the scrutiny of transposition of EU directives.

H3: Political parties that are more Eurosceptic engage more in ex post scrutiny in parliamentary committees than parties that are less Eurosceptic.

To what extent the hypotheses indeed explain the variation in the degree of scrutiny activity of party groups in Lower Chamber committees is analyzed in the empirical part. First the design of the research is set out in the next chapter.

(13)

4. Research Design

In order to find a valid answer to the research question, the research needs to be properly composed. Careful choices have to be made with regard to the research method used, the country selected for the study, the operationalisation of the dependent and independent variables and the cases studied. In this section the choices made for the research design of this thesis are elaborated upon.

4.1 Method

In the following chapters an empirical analysis of the parliamentary transposition stage of seven directives in the Netherlands will be presented. The analysis explores to what extent the independent variables of the theoretical framework can be considered explanatory for the variation in scrutiny activity in parliamentary committees in individual transposition processes and which other factors could play a role. A multiple case study is chosen because parliamentary review is a complex social phenomenon and in-depth case studies allow us to uncover complex social phenomena better than the already published quantitative studies, in which parliaments are considered one of the veto players or a correction factor for transposition delay (Dörrenbächer, 2013).

4.2 Country Selection

The analysis in this thesis is restricted to the Netherlands. With regard to the institutional capacities, Winzen (2012) found that the Dutch parliament has medium rights to control EU affairs. The findings of this thesis could thus be generalizable to countries in which the parliaments have similar control over EU affairs. Regarding the incentive structures, the Netherlands can be considered a most likely case for ex post scrutiny to occur, as highlighted by Mastenbroek et al. (2014, p. 754). There are several reasons for Dutch parliamentarians to engage in scrutiny activities. First, the political landscape has been unstable in recent years, caused by a distinct electoral volatility. This gives opposition parties an incentive to uncover implementation shortcomings of the governing parties (Mastenbroek et al., 2014, p. 755). Additionally, European integration has become a controversial issue in recent years and has become an important issue in Dutch politics, in particular since Eurosceptic parties like the Socialistic Party (SP) and Party for Freedom (PVV) have loudly criticised the growing impact of European politics on national legal and regulatory processes.

(14)

The last decades, the scrutiny of EU affairs in The Netherlands has shifted from the plenary to the committees (Högenauer, 2015). Internal reforms since 2006 have decentralized the supervision over EU affairs to sectoral committees, instead of the European Affairs Committee (EAC). The EAC is now mostly responsible for the coordination of EU-related matters and for managing the general and institutional issues that transcend the sectoral committees (Högenauer, 2015, p. 254). Other member states have also decentralized the scrutiny of EU affairs to sectoral committees, but in few member states that has been done to the same extent as in The Netherlands.

The Dutch parliament has several capabilities to scrutinize EU affairs ex post. The EAC and staff play a crucial coordination role, notifying the sectoral committees of expired deadlines or about Commission complaints about the content of the transposition laws (Högenauer, 2015). One of the pivotal tasks of the parliamentary committees is, as stated in an internal evaluation of the Lower Chamber, identifying ‘gold plating’, that is add-ons from the government that are not required by the directive and can be modified or omitted.

4.3 Dependent variable

Conceptualisation

The dependent variable in this thesis is ex post scrutiny activity in the Dutch Lower Chamber committees. The conceptualisation of scrutiny is an important aspect of this thesis. The importance lies in the fact that scrutiny is a broad concept and scholars have attached several different meanings to it, which may well have led to the heterogeneous results of previous research (Mastenbroek et al., 2014, p. 755). Some researchers have attached a broad notion to it. Holzhacker (2002, p. 462) for example used the definition ‘the exercise of power by the legislative branch to control, influence or monitor government decision-making’. Others have focused on the parliamentary control over the executive, or as Winzen (2012, p. 659) calls it: ‘the ability of a parliament to make government act according to its preferences’. In the most narrow understanding of the concept, scrutiny is viewed as denouncing policy preferences, rather than seeking influence on policy development.

In this thesis the conceptualisation of Mastenbroek et al. (2014) is used, which is more comprehensive than common conceptualisations of scrutiny in the literature. Mastenbroek et al. (2014) propose a ‘ladder of scrutiny’ containing five purposes for parliamentarians to scrutinize, increasing in power, namely (1) expressing support; (2) gathering information; (3) expressing their opinion; (4) voicing disagreement; and (5) exerting influence. Scrutiny can be 13

(15)

directed at either the proposal of a directive, or the national transposition bill. In addition to these five degrees of scrutiny, Mastenbroek et al. (2014) distinguishes scrutiny of substantive and of procedural nature. Most of the time political parties interact on the basis of their party political stances, but scrutiny may also relate to the operations of the EU, for instance in case of subsidiarity concerns.

Operationalisation

To assess ex post scrutiny, all relevant documents were collected on the transposition of the directives, in the same manner as done before by Mastenbroek et al. (2014). These relevant documents were the transposition measure and, if present, its explanatory memorandum, reports on the draft from the committees concerned, the response of the Cabinet and all the reports from committee meetings in which the transposition of the directives was discussed (source: overheid.nl). The scrutiny interventions were coded using the scrutiny ladder of (Mastenbroek et al., 2014). For each parliamentary intervention, the extent and goal of the parliamentary scrutiny were identified. In line with previous research by De Ruiter (2013) and Mastenbroek et al. (2014), we defined interventions as a statement or a question by an MP. Excluded were neutral statements, that for instance only describe the progress of the transposition process.

4.4 Independent variables

In order to find out if the first hypothesis holds, the scrutiny ex post on directives that vary on the independent variable needs to be studied, which is issue salience. As mentioned in the previous chapter, there are several manners to operationalize the salience of directives. In this thesis, salience is therefore operationalized in different manners, in order to triangulate the results.

Saliency at the European level

The degree of salience at the European level could be highly related to its salience at the national level. If a topic is very salient for politicians in the European arena, then it is more likely that this is also the case at the national level (Finke & Dannwolf, 2015). Looking at the number of recitals that precede a directive proposal is considered an indicator of its salience at the European level (Warntjen, 2012). Directives are introduced with a number of considerations that lead to the draft of the directive, the recitals. They mention the purpose of the directive and describe its main provisions. The number of recitals is used to measure the 14

(16)

importance of an act, it ‘should give a good approximation of the importance of a proposal in the overall European legal order’ (Häge, 2007, p. 315). A large number of recitals indicates that the directive has an extensive scope and that it addresses a high number of issues that were important to the decision makers at the European level. The number of recitals is also considered a valid indicator for the salience of a topic at the national level, since what is important for politicians at the European level, is often also important for their national counterparts (Warntjen, 2012). Finke and Dannwolf (2015) studied all 462 directives adopted between 1999 and 2012 under the codecision and consultation procedure and found a median number of recitals per directive of 18.

The saliency of a topic can also be influenced by the degree of politicization at the European level. Issues that are highly politicized in the European institutions might be more salient for party groups in national parliamentary committees as well. Inter-institutional conflict between the European Parliament and the Council is an indicator of politicization, which can be measured by the number of readings that where necessary to reach an agreement on the terms of the directive. An agreement can be reached after first, second or third readings. However, if an agreement on a directive is reached in one reading it is not by definition a directive with a low salience level. A directive agreed upon in first reading can be trivial or technical by nature and thus not a salient issue for the EU institutions, but it can also be a more contested issue which is agreed upon in first or early second reading through informal trilogues (De Ruiter, 2013; Reh, 2014). These informal deliberations between delegations from the Council, Commission and EP take place behind closed doors. Directives agreed upon in second reading can also be adopted through informal trilogues. In these ‘early second readings’ the EP adopts the common position of the Council in unamended form (De Ruiter, 2013). Informal trilogues thus have to be taken into account when assessing the degree of inter-institutional conflict at the EU level.

Conflict within European legislative institutions could also indicate its politicization and thus salience at the European level. An indicator of the salience of a directive is whether the draft directive has been labelled an A- or a B-item on the Council agenda. When the Council decides that the proposal of a directive is only a minor issue on the agenda, then it labels the directive as an A issue. Issues that are considered to need more detailed discussions are labelled a B issue (De Ruiter, 2013, p. 1199).

(17)

Saliency at the national level

Another possible reason for party groups to pay attention to the transposition of an EU directive is the saliency of the issue at the national level. A way to operationalize this is looking at the media attention a topic receives (Warntjen, 2012). Media attention in the transposition stage of directives does not occur often, but when a directive does receive media attention, it is plausible that MPs can benefit from scrutinizing this directive, most importantly by winning votes in elections (De Ruiter, 2013). Mastenbroek et al. (2014) stress in their analysis that high-profile ex post scrutiny is more likely to occur when directives are subject of great turmoil and media attention, and that subsequent analyses should consider highly salient directives in terms of media attention. This thesis answers to this call, by operationalizing salience in terms of media attention. The media attention the directives received in the transposition stage was assessed by counting the number of articles mentioning the directive in five Dutch newspapers (see De Ruiter (2013) for a similar approach). The studied newspapers were NRC Handelsblad, Algemeen Dagblad, de Volkskrant, Het Parool, Het Financieele Dagblad and Trouw (source: Lexis-Nexis). For each directive the media attention was studied in the period between the date of adoption and the date the last transposition measure was implemented. De Ruiter (2013) studied all 293 directives agreed upon between December 2000 and November 2010 and found an average number of 1.078 mentions in newspapers per Directive in the ex ante stage, with a standard deviation of 6.52. This study did however not include Het Financieele Dagblad. Most Directives thus do not receive media attention in the ex ante stage and the salient directives considerably heighten the mean. Media attention in the ex post stage is expected to be less. For the dependent variable of hypotheses 2, the role of the party group in the parliament, a list of governing coalitions was made (see table 1).

For hypothesis 3 the information about the orientation with regard to European integration of the party leadership of the Dutch political parties stemmed from the Chapel Hill Expert Survey data of 2014 (Bakker et al. 2014), which combines all the data of the Chapel Hill Expert Surveys of 1999, 2002, 2006, 2010 and 2014. In this survey, experts were asked to assess ‘the general position on European integration that the party leadership took over the course of the year’ on a scale ranging from 1 (strongly opposed to) to 7 (strongly in favour). When a party scored 3.5 or below it was considered Eurosceptic. Table 2 shows the scores of the Dutch parties. Table 3 shows an oversight of the operationalization of the variables in the analysis of this thesis.

(18)

Table 1: Coalition Governments in the Netherlands 2003- 2012

Government/ Year Parties in coalition

Kok II (August 1998-July 2002) PvdA, VVD, D66 Balkenende I (July 2002-May 2003) CDA, LPF, VVD Balkenende II (May 2003-July 2006) CDA, VVD, D66 Balkenende III (July 2006 – Feb. 2007) CDA, VVD Balkenende IV (Feb. 2007- Oct. 2010) CDA, PvdA, CU Rutte I (Oct. 2010- Nov. 2012) VVD, CDA (PVV) Rutte II (Nov. 2012- present) VVD, PVDA

List of political parties

CDA (Christen-Democratisch Appèl; Christian Democratic Alliance) CU (Christen Unie; Christian Union)

D66 (Democraten ‘66; Democrats ’66) LPF (Lijst Pim Fortuyn; List Pim Fortuyn) PvdA (Partij van de Arbeid; Labour Party) PVV (Partij voor de Vrijheid; Freedom Party)

VVD (Volkspartij voor Vrijheid en Democratie; People’s Party for Freedom and Democracy) SP (Socialistische Partij; Socialist Party)

SGP (Staatkundig Gereformeerde Partij; Reformed Political Party)

Table 2: Positions of Dutch parties on European integration

Party EU position CDA 5,55 PvdA 5,45 VVD 5,18 D66 6,82 GroenLinks 6,55 SGP 2,56 SP 2,10 CU 3,44 PVV 1,09 PvdD 3,71 50PLUS LPF 4,80 2,781 From: Bakker et al. (2014)

1

The value for the LPF stems from the Chapel Hill Expert Survey 2002 (Hooghe et al., 2004)

17

(19)

Table 3: Variables in the analysis

Variable Measurement Data Source

Ex post parliamentary scrutiny by party groups in Lower Chamber

committees

Committee reports, higher values = higher degree of scrutiny

Overheid.nl

H1: Salience Number of recitals Directive: Eurlex ‘A’ or ‘B’ issue on Council

agenda

Idem Number of readings before

agreement was reached

Idem Number of newspaper

articles mentioning a directive

AD, NRC, Volkskrant, Trouw, Parool, Het Financieele Dagblad H2: Party in opposition dichotomous, 1 = party in

opposition

H3: Euroskepticism Higher values = less euroskeptic

Chapel Hill Expert Survey

4.5 Case Selection

Since the goal of this thesis is to test whether the hypothesized causal mechanisms can be supported by empirical evidence, the type of case study chosen is a most different case selection method. In order to represent the full range of variance in directives, the investigated cases show a maximum variance along the relevant dimensions. Since saliency is a continuous variable, directives at the extremes (high and low salience), as well as averagely salient directives were picked, by looking at the number of recitals, number of readings, the status on the Council agenda and the media attention. Furthermore directives were picked that have been transposed under different government formations.

These conditions led to the selection of the following seven cases: the Family Reunification Directive2, the Data Retention Directive3, the Battery Directive4, the Services Directive5, the Flag State Directive6, the Non-Automatic Weighing Instruments Directive7,

2

Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L251/12 [Family Reunification Directive].

3

Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54 [Data Retention Directive].

4

Directive 2006/66/EC of the European Parliament and of the Council of 6 September 2006 on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC (Text with EEA relevance) [2006] OJ L266/1 [Battery Directive].

5

Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market [2006] OJ L376/26 [Services Directive].

18

(20)

and the Translation and Interpretation Directive8. Table 4 shows how these directives vary on the independent variables in this research.

Table 4: Characteristics of the selected directives Directive Family

Reunific.

Data Retention

Battery Services Flag State N-AWI T&I Reference 2003/86/EC 2006/24/E

C

2006/66/EC 2006/123/EC 2009/21/EC 2009/23/E C 2010/64/EU Date of proposal 01/12/1999 21/09/2005 24/11/2003 13/01/2004 23/11/2005 25/07/2007 18/03/2010 Date of adoption 22/09/2003 15/03/2006 06/09/2006 12/12/2006 23/04/2009 23/04/2009 20/10/2010 Date of transposition 15/02/2005 25/08/2009 09/09/2008 24/12/2009 20/04/2011 02/12/2009 01/10/2013 Number of recitals 18 25 30 118 11 9 36 A or B issue B B B B B A A Number of readings 1 1* 3 2* 2* 1 1* Media att. ex ante 2 26 7 384 0 0 0 Media att. ex post 3 56 1 46 0 0 0 Government during transposition Balkenende I, II Balkenend e II, III, IV Balkenende III, IV Balkenende III, IV Balkende IV, Rutte I Balkenend eIV Rutte I, Rutte II * informal trilogues

The Services Directive clearly stands out as a highly salient directive, both at the European level and at the national level, as respectively shown by its high number of recitals and a high number of mentions in the Dutch newspapers. Judging from the scores on the variables above the Data Retention Directive and Battery Directive can also be considered highly salient directives, since their number of recitals is above average, they were ‘B’ items on the Council agenda and they both received attention in the media. Three readings were necessary before an agreement was reached on the Battery Directive, which indicates its salience at the European level even more. The Data Retention Directive was decided upon after just one reading, but that was due to informal trilogues. The Family Reunification Directive also

6

Directive 2009/21/EC of the European Parliament and of the Council of 23 April 2009 on compliance with flag State requirements (Text with EEA relevance) [2009] OJ L 131/132 [Flag State Directive]

7

Directive 2009/23/EC of the European Parliament and of the Council of 23 April 2009 on non-automatic weighing instruments (Codified version) (Text with EEA relevance)[2009] OJ L122/6 [Non-Automatic Weighing Instruments Directive].

8

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1 [Translation and Interpretation Directive].

19

(21)

received some media attention and has been a ‘B’ item on the Council agenda. Based on these characteristics it can also be considered a salient directive. The number of recitals however is only average and only one reading sufficed to reach an agreement, therefore altogether the Family Reunification Directive is considered only moderately salient here.

The other three directives received no media attention and thus do not seem to be salient on the national level. The Non-Automatic Weighing Instruments Directive has a low number of recitals, was an ‘A’ item on the Council agenda and was concluded in a single reading, and therefore appears to be non-salient at the European level as well. The Translation and Interpretation Directive has the same characteristics, apart from the number of recitals, which is twice as high as average. The fact that it was only an ‘A’ item on the Council agenda and that it was concluded in just one reading can be due to the informal trilogues that took place. The Translation and Interpretation Directive could thus be more salient than appears from table 4. The Flag State Directive has a low number of recitals, but was a ‘B’ item on the Council agenda and needed a second reading before the decision making procedure could be concluded.

4.6 Control variable

The degree of ex post scrutiny could be related to the degree of scrutiny ex ante by party groups in parliamentary committees. If parliamentarians have paid much attention to the decision making process of a directive, then they could be more interested in scrutinizing the transposition stage as well. Or on the contrary, when they have already scrutinized the decision making process then they might not feel the need to pay attention to the ex post stage. There could thus be a causal relationship between scrutiny ex ante and ex post. There is not much known about this relationship yet, since not much research on it has been done yet (but see Finke & Dannwolf, 2013).

In the following chapters, the scrutiny in the Dutch Lower Chamber committees on the transposition of the Family Reunification Directive, the Data Retention Directive, the Batteries Directive, the Services Directive, the Non-Automatic Weighing Instruments Directive, the Flag State Directive and the Translation and Interpretation Directive is analysed. The chapters for each directive start with an introduction of the directive and its most important and salient provisions and are followed by an analysis of its salience. Subsequently the scrutiny in the Lower Chamber committees is analysed and an assessment is made to which extent the independent variables explain the variation in the ex post scrutiny

(22)

activity of party groups in the Lower Chamber committees and thus whether the hypotheses are confirmed or not.

(23)

5. The Family Reunification Directive

5.1. Background of the directive

On 1 may 1999 the Amsterdam Treaty entered into force and it added a new Title IV, called ‘Visa, asylum, immigration and other policies related to free movement of persons’, to the EC Treaty.9 The new articles 61 to 69 were designed to gradually establish an area of freedom, security and justice (Groenendijk, Fernhout, Van Dam, Van Oers, & Strik, 2007, p. 2). In article 63 (3) (a) of the Treaty it was stated that within a period of five years after the entry into force of the Amsterdam treaty the Council unanimously had to adopt measures concerning conditions of entry and residence and standards on procedures for the issue of long-term visa and residence permits by Member States. Immigration for the purpose of family reunion was included (Groenendijk et al., 2007, p. 2). Family reunification is perhaps the most important category of immigration into the EU, as other channels of legal migration are relatively closed (Luedtke, 2011, p. 11).

In December 1999 the European Commission presented its proposal for a Directive on the right to family reunification for third-country nationals (TCN) living in a Member State.10 With its first proposal the Commission opted for a common policy in which national considerations would be subordinated, with the goal of protecting human rights. Intensive discussions between Member States in the Council led to a deadlock, because of divergent stances of Member States with regard to restrictiveness and Europeanization (Block & Bonjour, 2013; Luedtke, 2011). The Commission was forced to water down its original proposal in subsequent revised versions proposed in 2000 and 2002. After further review, the EU Council of Ministers finally reached a political agreement on the proposal on 27 February 2003. The agreed text was finally adopted by the Council on 22 September 2003, without further amendments. The Family Reunification Directive was adopted under the consultation procedure. It entered into force on 3 October 2003 and the deadline for Member States for the implementation of the directive was set on 3 October 2005. After that deadline, individuals could derive rights from the provisions that are stated in the Directive (Groenendijk et al., 2007, p. 3).

Due to many amendments, the provisions in the final version of the Directive were much stricter than those in the original Commission proposal (Luedtke, 2011, p. 12). Member States are free to set less stringent conditions than those allowed by the Directive, but more

9

Consolidated Version of the Treaty Establishing the European Community [1997] OJ C340/173.

10

Commission, ‘Proposal for a Council Directive on the right to family reunification’ (Communication) COM (99) 638.

22

(24)

restrictive policies are not allowed (Block & Bonjour, 2013, p. 204). The Directive allows Member States to require both spouses to have reached a minimum age of 21 years at maximum, in order to prevent forced marriages and ensure better integration. Furthermore, countries can require a minimum income to prove regular and stable resources to maintain the family and they can require a period of minimum legal residence up to 2 years in the Member State in order to be able to sponsor family migration (Block & Bonjour, 2013, p. 206). Article 15 states that after five years of residence, a family migrant must be granted an autonomous residence permit, independent of the state of his or hers relationship with the sponsor.

Concerning the reunification of children with their parents, the final directive includes a restriction for the right to family reunion for children older than twelve, whereas the initial proposal granted all underage children the right to reunification. The directive enables the Member States to give children older than twelve an integration test, which should prove the child’s potential to integrate in the society. A failure could be ground for refusal of admission to the country. When comparing the directive with national legislation, Luedtke (2011, p. 12) concludes that the directive stands somewhere in between the policies of the more liberal and the more restrictive Member States.

The Dutch position

For the Netherlands, the negotiations were conducted by three different cabinets. Negotiations started when the government Kok II (PvdA, VVD and D66) was still in power, until July 2002. Afterwards this government was replaced by the cabinet Balkenende I (CDA, VVD and LPF) and later by the government Balkenende II, in which the LPF was replaced by D66. The Netherlands initially supported the aim of a more uniform family reunification and family formation policy, provided that it could deviate positively from the EU policy.11 The basic principle was that every TCN residing legally in a Member State, should have the right to family reunification and family formation, under the conditions set out in national legislation. Furthermore the government wanted to change as little as possible in the existing legislation (Block & Bonjour, 2013, p. 212). Both the subsidiarity and proportionality of the Directive were assessed positively in the first explanatory memorandum of the government, sent to parliament in June 2000.12 Most components of the Directive were in accordance with the Dutch policy. An important deviation was however that the proposed Directive stated that Member States were not allowed to impose further requirements for the admission of family

11

Parliamentary Papers II, 1999/2000, 23, 490, no.154.

12

Parliamentary Papers II, 1999/2000, 22,112, no. 161.

23

(25)

members of refugees. This was unacceptable for the Netherlands, since it wanted to keep the possibility to impose further conditions on these kind of immigrants.13

When the Balkenende governments took office, the government opted for a more restrictive immigration policy and thus for a more restrictive Family Reunification Directive. Together with Germany, the Dutch fought hard for restrictive provisions and to keep the maximum policy freedom for national governments. The German delegation was the most successful in influencing the policy direction of the Directive, but the Dutch were also often successful in reaching their desired goals (Block & Bonjour, 2013, p. 212). Together with Germany and Austria, the Dutch successfully opted for the addition of integration measures in the Directive and the Netherlands was almost solely responsible for the raise of the minimum age required for spouses from 18 to 21 years (Block & Bonjour, 2013). Thus, Germany and the Netherlands left a strong mark on the final provisions of the Family Reunification Directive.

5.2 Salience of the Directive

Table 5: scores on the indicators of salience

EU level National level

Number of recitals Number of readings A or B-item on Council agenda Media attention ex ante Media attention ex post 18 1 B 2 3

The scores on the indicators of salience indicate that this Directive was fairly salient. The number of recitals is average and only one reading was sufficient to reach an agreement on the Directive, but that is presumably due to the fact that this Directive was decided upon under the consultation procedure. The B-status on the Council agenda and the fact that it took almost four years before a compromise in the Council could be reached, indicate that the Family Reunification Directive was salient at the EU level. The Directive received some attention in the Dutch newspapers, which indicate it was salient in the Netherlands as well.

5.3 Ex ante scrutiny

During the greater part of the decision making process the Netherlands was governed by a coalition composed of PvdA, VVD and D66. Although the cabinet had a positive stance towards the Commission goal of introducing a more uniform immigration policy in the EU,

13

Parliamentary Papers II, 1999/2000, 22,112, no. 161.

24

(26)

there were many discussions of the issue in the Lower Chamber committee meetings. Most of these took place in General Consultations of the Standing Committee of Justice (CJ) and the Standing Committee for Home Affairs and Kingdom Affairs (CHA). There were six General Consultations of these committees in which parliamentarians intervened more than five times concerning the proposal for the Family Reunification Directive. Many of these consultations were held prior or just after a meeting of the Justice and Home Affairs Council and parliamentarians thus inquired about and expressed their opinion on the proceedings in the Council.

In total 49 interventions concerning the Family Reunification Directive were made by parliamentarians in the ex ante stage, see table 6. Coalition and opposition were almost equally active in scrutiny ex ante, with 24 interventions of the coalition and 25 of the opposition. GroenLinks was the most active party, with 12 interventions, closely followed by PvdA and VVD (both 10). These three parties were thus responsible for almost two third of the ex ante scrutiny activity. The other interventions were made by CDA (8), D66 (5), SGP (2) and LPF (1). Most of the interventions were made in order to gain information or to signal position. Disagreement was more often expressed by the opposition (6 times) than by the coalition (2). There was broad support for the goal of the Directive to create a more uniform family reunification policy in the EU. Much disagreement however existed between the parties about the specific conditions that had to be fulfilled by immigrants to qualify for family reunification.

Table 6: Scrutiny ex ante on the Family Reunification Directive Focus: EU Focus: Subst. Goal: Support Goal: Inform. Goal: Position Goal: Disagr. Goal: Influence Total interv. Party: CDA 1 7 1 4 2 1 0 8 Party: D66 1 4 0 1 4 0 0 5 Party: GL 1 11 0 0 8 3 1 12 Party: LPF 0 1 0 0 1 0 0 1 Party: PVDA 4 6 1 4 2 3 0 10 Party: SGP 0 2 0 0 2 0 0 2 Party: VVD 1 9 0 4 4 1 1 10 Role: Coalition 5 19 2 9 10 2 1 24 Role: Opp. 3 22 0 5 13 6 1 25 Total interv. 8 41 2 14 23 8 2 49

GroenLinks was thus the most active party. It directly signalled its position that the Dutch government should pursue minimum norms for family reunification during the negotiations in

(27)

the Council, allowing Member States to apply more favourable policies.14 In 4 of its 12 interventions it expressed it discontent with the extra reservations the minister wanted to make. The Dutch government wanted for instance to extend the period during which family reunification sponsors had to meet certain requirements from 3 to 5 years. Furthermore GroenLinks, together with the PvdA, disagreed with the Dutch government about the length of the processing time. The Netherlands wanted a processing time of 9 months instead of the proposed 6 months, while GroenLinks supported the latter. Both the PvdA and GroenLinks voiced their displeasure with the initiative of the Dutch delegation in the Council that introduced ‘belonging to family life’ as a criterion for family reunification as they considered it a controversial and vague term that could have the implication that factual members of a family, like foster children and unmarried partners, were not legally considered as family member and thus did not qualify for family reunification .15

The question whether or not unmarried partners could be qualified for family reunification was one of the most controversial topics during the discussions of the Directive proposal. The VVD believed that the conditions for reunification were too generous, as unmarried partners who lived together were also qualified. It is impossible to prove for foreigners that they lived together in their home country, according to the VVD. The Christian parties CDA and SGP welcomed this opinion warmly, as they wanted only married or registered partners to qualify for family reunification. GroenLinks, PvdA and D66 on the other hand wanted that unmarried partners who lived together would also qualify for family reunification.

GroenLinks and the PvdA finally stated that they could not support the Directive as agreed by the Council, as it contained too many restrictions to family life and GroenLinks believed the Directive contradicted article 8 of the European Convention on Human Rights.16

5.4 Ex post scrutiny

Transposition of the Directive started when the new Balkenende II coalition, consisting of CDA, VVD and D66 governed the Netherlands. The transposition instrument was a royal order, so no formal parliamentary involvement was required. There was considerably less scrutiny ex post than ex ante, with 18 interventions compared to 49 ex ante. Compared to the

ex ante scrutiny it is striking that opposition parties were much more active in ex post scrutiny

14

Parliamentary Papers II, 1999/2000, 23, 490, no.154.

15

Parliamentary Papers II 2000/2001, 23,490, no. 193, p. 15.

16

Parliamentary Papers II, 2002/2003, 23,490, no. 266, p. 7.

26

(28)

(13 interventions) than the coalition parties (5 interventions), while in ex ante scrutiny they were almost equally active.

Both the PvdA and D66 wanted to explore the possibility to impose conditions on the foreign partner, instead of only on the partner residing in the Member State.17 GroenLinks and the SP stated that they considered the condition imposed by the government that applicants for family reunification had to have an income of at least 120 percent of the legal minimum wage in the Netherlands as unreasonable, as it would hit certain groups of society, like young adults and women, disproportionally hard.

Table 7: Scrutiny ex post on the Family Reunification Directive Focus: EU Focus: Substant. Goal: support Goal: Inform. Goal: Position Goal: Disagr. Goal: Infl. Total interv. Party: CDA 1 2 1 1 1 0 0 3 Party: D66 0 1 0 0 1 0 0 1 Party: GL 0 3 0 0 2 1 0 3 Party: LPF 0 1 0 0 1 0 0 1 Party: PVDA 0 5 0 1 3 1 0 5 Party: SGP 0 1 1 0 0 0 0 1 Party: SP 0 3 0 1 1 1 0 3 Party: VVD 0 1 1 0 0 0 0 1 Role: Coalition 1 4 2 1 2 0 0 5 Role: Opp. 0 13 1 2 7 3 0 13 Total interv. 1 17 3 3 9 3 0 18 5.5 Analysis

Hypothesis 1 is to a large extent confirmed by this Directive. The Directive was salient at the EU level and it received media attention in the Netherlands as well. Based on the literature it was thus expected that national Parliamentary party groups were actively scrutinizing the transposition of the Directive, which was confirmed by the findings. Eight parties made a total of 18 scrutiny interventions in the ex post stage, on three different occasions. The opposition parties were much more active than the coalition parties, with thirteen opposition interventions compared to five from the coalition parties. Moreover, the interventions from the opposition parties were higher on the scrutiny ladder, as opposition parties signalled their position and expressed their disagreement much more often in eighty per cent of their interventions. Hypothesis 2 is thus confirmed by this Directive as well. The scrutiny

17

27

(29)

concerning this Directive is not in accordance with hypothesis 3. The Eurosceptic parties SP and LPF were not more active than their more pro-EU counterparts.

(30)

6. The Data Retention Directive

6.1 Background of the Directive

The goal of the so-called Data Retention Directive was to make European cooperation possible in investigating, detecting and prosecuting serious criminal offences. The political authorities believed that the storage of telecommunications data was indispensable in the fight against crime. The call for action was mainly instigated by terrorist attacks in the years prior to the adoption of the Directive. Especially the British were determined to find a solution for the subject during their presidency of the EU in 2005, just after the terrorist attacks on London in July.18 Unlike the United States, where communication providers routinely store such information for marketing purposes, in many European Countries communication providers were legally obliged to clear it out as soon as it was no longer needed for billing purposes (Bignami, 2007).

The procedure that led to the adoption of the Directive was long and unusual. The Directive was adopted before the Lisbon Treaty came into force and the European legal context was very different from what it is today. The three pillars of the European Community were still in force and they had to be taken into consideration when adopting legislation (Stoeva, 2014). The first difficulty was to reach an agreement concerning the pillar under which the legislation fell. Initially, the Data Retention measure was drafted as a Council Framework Decision in 2004 under the third pillar.19 The Commission however opposed the proposal because it claimed that the categories of data covered by the text were more a first-pillar issue (Ripoll Servent, 2013). In September 2005 the Commission therefore issued a new proposal based on Article 95 of the TEC under the first pillar.20 Depending on the legal basis, a different type of consensus had to be reached in the Council and the Parliament. The third pillar required no consent of the EP, but a unanimous decision in the Council and adoption of the Data Retention Framework Decision would thus have been hard under a judicial and police cooperation legal basis (Stoeva, 2014). A Directive under the former first pillar required consent of the EP and a qualified majority in the Council, which would be much

18

Parliamentary Papers II, 2005/2006, 23 490, no 389, p. 2.

19

Council of the European Union (2004) ‘Draft framework decision on the retention of data processed and stored in connection with the provision of publicly available electronic communications services or data on public communications networks for the purpose of prevention, investigation, detection and prosecution of crime and criminal offences including terrorism’, CNS/2004/0813.

20

Commisison, ‘Proposal for a Directive of the European Parliament and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58/EC’(Communication) COM (2005) 438 final.

29

(31)

easier to pass. The more convenient route was thus to adopt the measure under the internal market legal basis.

In March 2006 the European Parliament and the Council adopted the Directive. The final agreement was characterized by ambiguity and flexibility (Ripoll Servent, 2013). The directive obliged providers of electronic communications services and networks to keep data related to phone calls and emails (Art 5) for a minimum period of six months. Member states had the opportunity to extend this period to a maximum of two years (Arts 3,6). The data had to be available for the national police and for police officers in other Member States as well, depending on the requirements in their respective national law (Arts 1,4,8).

The Dutch position

The Netherlands assessed the subsidiarity of the Commission proposal as positive.21 It believed that the goal of the Directive could not be reached without an EU-wide regulation, since differing policies of Member States would have negative effects on the telecommunications market as well as on the fighting against serious crimes by law enforcement authorities. Provided that the costs for telecommunications companies would not be excessively high, the Netherlands also assessed the proportionality as positive. It agreed with the proposed retention for one year, except for internet communication, for which a retention of 6 months applied.

The Minister of Justice stated that he could only agree with a regulation in the form of a Directive instead of a Council framework decision, because of the more democratic nature of a Directive and because he believed that a framework could be declared invalid by the European Court after two years, because of an invalid legal basis.22 The Netherlands stated that the Directive should not limit the possibilities in cases of investigation of counterterrorism. No general telecommunication data storage obligation existed in Dutch legislation prior to the adoption of the Directive. The Directive thus required a modification of the Telecommunications Law.

5.2 Salience of the Directive

The scores on the indicators of issue salience (see table 8) show that the Data Retention Directive was highly salient for both the EU-institutions and the Dutch newspapers. That an agreement was reached after just one reading was due to informal trilogues between the Council, Commission and EP. The Directive received much media attention in both stages, as

21

Parliamentary Papers II, 2005/2006, 22,112, no. 407, p 11.

22

30