Dr. Katarzyna Granat, Junior Research Fellow & Marie Curie Fellow, Durham Law School
The Draft Decision of
the Heads of State or Government, ‘A New Settlement for the United Kingdom
within the European Union’, unveiled by Donald Tusk on February 2 2016 offers the first concrete vision of the changes to enhance the role of
national parliaments under the UK’s renegotiation efforts. This note provides
an analysis of the suggested changes by contrasting them with the mechanisms
currently in force under the Lisbon Treaty.
Tusk’s proposal
(Section C, points 2-3) envisions that reasoned opinions of national parliaments
issued under Article 7.1 of Protocol No. 2 ‘on the application of the
principles of subsidiarity and proportionality’ should be ‘duly taken into
account’ by all institutions participating in the EU decision-making
procedures. In Tusk’s proposal national parliaments may submit reasoned
opinions stating that an EU draft legislative act violates the principle of
subsidiarity submitted within 12 weeks from the transmission of that draft. If
these reasoned opinions represent more than 55% of votes allocated to national
parliaments (i.e. at least 31 of the 56 available votes; two votes for each
national parliament; in the case of a bicameral parliament, each of the two
chambers has one vote; votes of parliaments of member states not participating
in the adoption of the act at stake are not counted), the opinions will be
‘comprehensively discussed’ in the Council. If the EU draft legislative
proposal is not changed in a way reflecting the concerns of national
parliaments in their reasoned opinions, the Council will discontinue the
consideration of that draft.
This proposal differs
from the current ‘yellow’ and ‘orange’ card schemes of the Lisbon Treaty in a
number of ways concerning in particular the timeframe, applicable thresholds
and the effects of these procedures.
First, under the
existing provisions of the Lisbon Treaty national parliaments may submit a
reasoned opinion to the Commission, EP and Council within eight weeks from the
transmission of the draft legislative act (Art. 6 of Protocol No.2). Tusk’s
proposal hence gives national parliaments more time for the analysis of
proposals and drafting reasoned opinions. The need to extend the submission
deadline is often underlined by national parliaments and this would probably be
welcomed by them. (See COSAC, 24th Bi-annual Report: Developments in European
Union Procedures and Practices Relevant to Parliamentary Scrutiny, 4.11.2015 at
22) Yet, it is unclear whether the extension to 12 weeks under Tusk’s proposal
also applies to the ‘yellow’ and ‘orange’ card procedures.
Second, although the
mechanism of assignment of votes to national parliaments does not change,
Tusk’s proposal offers a different threshold of votes to be met by national
parliaments. The ‘yellow card’ provision demands that the reasoned opinions on
the non-compliance of a Commission proposal with the principle of subsidiarity represent
at least one third of all the votes allocated to the national parliaments. For
triggering of the ‘orange card’, applicable only in the ordinary legislative
procedure, the reasoned opinions of national parliaments need to represent at
least a simple majority of the total number of votes allocated to the national
parliaments. In contrast, to activate the procedure proposed by Tusk the
necessary threshold is 55% of the votes allocated to national parliaments.
Hence out of 56 votes of national parliaments at least 19 are necessary for a
‘yellow card’; at least 29 for an ‘orange card’ and 31 to meet the ‘more than
55%’ threshold in Tusk’s proposal. The new procedure thus requires only slightly
more votes than the existing ‘orange card’, which, thus far, has never been
triggered successfully.
Third, the most
substantial change concerns the consequences of activating the new procedure.
The ‘yellow card’ involved consequences that were relatively limited: the
Commission had to review the draft and then to decide on whether to maintain,
amend or withdraw the draft, giving reasons for its decision (Art. 7.2. of
Protocol No. 2). For the ‘orange card’, the Commission had similar choices
available, but a decision to maintain the proposal required the Commission to prepare
its own reasoned opinion with arguments demonstrating compliance of the act
with the subsidiarity principle. The EP and the Council would then decide on
the fate of the proposal taking into account the arguments on the principle of
subsidiarity expressed by the Commission and by national parliaments. If subsequently
55 % of the Council members or a majority of the votes cast in the EP finds a
subsidiarity breach, ‘the legislative proposal shall not be given further
consideration’. (Art. 7.3 of Protocol No. 2) By contrast, Tusk’s proposal seems
to omit the phase in which the Commission can respond to national parliaments
and instead moves directly to the Council, at which point Member States' representatives 'will discontinue' the
consideration of the proposal, if it is not amended to accommodate the
‘concerns’ expressed by national parliaments. Tusk’s proposal binds stopping of
the legislative procedure with whether the requests of national parliaments are
met, while the ‘orange card’ provided for discontinuation only if the Council
finds a subsidiarity breach.
It is worth noting that
important details of the procedure such as who is responsible for amending the
proposal and more importantly verifying whether the concerns of national
parliaments were addressed are left unspecified. Recall that in its interaction
with the national parliaments the Commission has often expressed itself
satisfied that the concerns of the parliaments expressed in the reasoned
opinions have been addressed by the original proposal. (See House of Lords, European
Union Committee, 9th Report of Session 2013-14, para 87) Nevertheless,
Tusk’s proposal seems to demand a more active response from EU institutions
than the ‘orange card’.
Moreover, one should
note that Tusk’s proposal does not grant the national parliaments a veto power
on any aspect of a Commission proposal. Tusk’s proposal mentions that the
discontinuance of the legislative procedure is conditional on the non-accommodation
of the ‘concerns’ expressed in the reasoned opinions, with the ultimate
decision taken by the Council, and thereby away from the national parliaments.
One further interesting
aspect of Tusk’s proposal is that it refers throughout to reasoned opinions on
the non-compliance of proposals with the subsidiarity principle, even though in
their exercise of subsidiarity scrutiny under Protocol No. 2 national
parliaments often critique issues such as the legal basis, proportionality or
the political merits of a proposal, thereby going beyond strict subsidiarity review
(See F. Fabbrini, K 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 (2013) 50 Common Market Law Review, 115–143). The
question is whether under Tusk’s proposal such a broad approach would also be adopted
in the Council. If so, this might cause difficulties in amending a proposal in
a way that properly takes account of all the different aspects raised by
national parliaments and in consequence makes it also easier to stop the
legislative procedure because of the lack of accommodation of the demands of
the parliaments.
A broad reading of Tusk’s proposal would therefore probably be
more in line with Cameron’s wish of strengthening national parliaments by
allowing a threshold of national parliaments ‘to stop unwanted legislative
proposals,’ although Cameron underlined also that the EU must commit to a full
implementation of the subsidiarity principle. (Letter of D. Cameron to D. Tusk,
10. November 2015 at 4) A more specific answer to the latter issue might be the
proposed draft declaration ‘on a subsidiarity implementation mechanism and a
burden reduction implementation mechanism’ obliging the Commission to create a
mechanism for the review of existing EU legislation for its compatibility with
the subsidiarity and proportionality principles with an aim to provide ‘full
implementation’ of subsidiarity. (EUCO 7/16)
Last point: the fact
that the tabled proposal demands a discussion in the Council could also mean
that depending on the relationship between parliaments and their governments
represented in the Council, the ministers might show more or less flexibility
with the ‘concerns’ of their national parliaments and whether a consensus on
stopping or continuing with the legislative procedure could be achieved.
Finally, recall that the
rejected ‘red card’ proposed in the Convention on the Future of Europe aimed at
a two-third majority of national parliaments that would require the Commission
to withdraw its proposal (CONV 540/03, 6.02.2003, p. 3). In comparison, Tusk’s
proposal has a lower threshold and does not imply an immediate stopping of the
legislative procedure. It could be hence described as a ‘red card light’ and as
way of finding a compromise solution without threatening to disrupt the EU
legislative procedure.
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