The Lisbon Treaty - A New Role for National Parliaments in the European Project?

Katrin Auel

Provisions in the Lisbon Treaty „ „ „

Article 12 TEU Article 48 para. 7 (veto passerelle) Protocol on Role of NP in the EU „ „

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Information rights 8 week period for scrutiny

Protocol on Application of Principles of Subsidiarity and Proportionality „ „

EWS Subsidiarity action ECJ

FCC Decision: ‘yes, but…’ „

2008 Ratification Act for Treaty is constitutional „ „ „

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Ultimate authority has to be tied to single political entity If the EU were to become a state, this would make a European Constitution necessary But the EU is not a state

Until it is a state, nation state have to retain authority in important areas If these areas are integrated without the EU becoming a state, Germany may have to leave the EU

FCC Decision „

2008 Act on Parliamentary Participation is unconstitutional „

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Parliament retains ‘integration responsibility’ Has to ensure integration does not exceed limits Has to approve all Treaty changes, approval cannot be tacit

Action before the ECJ „

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Bundestag is obliged to file action on demand by ppg or >25% of MPs, government has to bring action French Assemblee Nationale is obliged to file action on demand by > 60 MPs, Government has to bring action if demanded Government is not obliged to bring action on behalf of parliament

The EWS/Political Dialogue in Practice „

Challenges „

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Definition of subsidiarity and narrow remit for parliamentary control Time management and information overload

Hopes and expectations „ „ „

Improve inter-parliamentary coordination Give parliaments a voice ‘at home’ Increase parliamentary awareness for and activity in EU affairs

What is subsidiarity and how does one recognise a violation? „

Limited involvement „ „

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Lack of precise definition „

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Very narrow remit for parliamentary control Purely negative role in legislation So far Treaty and Protocol provide vague definition at best ECJ: principle ‘justiciable’, but no clear definition or ‘test’, no annulment due to a violation

Different challenges for EWS and action EJC „

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EWS: political interpretation but makes parliamentary coordination necessary Action ECJ: legal interpretation

Dealing with information overload and getting it done in eight weeks „

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Participation and completion rates in COSAC test runs

Source: Neuhold 2011

Dealing with information overload and getting it done in eight weeks „

Bundestag: cumbersome process of allocating documents to lead and advisory committees due to division of labour (ca. 4 weeks) „

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Facilitated through ‘prioritisation process’ in new division PA 1 Europe

Additional information „ „

Representation in Brussels Explanatory memoranda from Government

Timeline Referral of the proposal (22 October 2009) Written report by the Federal Ministry of Justice (30 October 2009) Prioritisation proposal (provided by division PA 1 - Europe) (11 November 2009) EAC: deliberation and vote, communication vote to lead committee (2 December 2009) Committee on Legal Affairs (lead): recommendation for a decision and report to the plenary (16 December 2009) Deliberation and decision of the plenary (final vote) (17 December 2009) Transmission of the German Bundestag’s decision to the EU institutions by the president of the German Bundestag (17 December 17 2009) (COSAC 2010: 74).

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Inter-parliamentary coordination „

EWS collective participation right „ „

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COSAC dry runs „

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Quorum for yellow and orange card Political weight Cooperation very limited even between chambers in bicameral systems Quorum never reached Little agreement on reasons for violation

IPEX ‘Monday Morning Meetings’ Brussels

Reaching the Audience? „

ESW as domestic instrument of influence? „

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Government and citizens/public opinion as ‘real’ addressees But: incompatible with logic of parliamentary systems

Bundestag „ „ „

Tacit support of gov’t for opinions No publicity for opinions (e.g. website) Little media attention (exception: reasoned opinion in October 2010 on Deposit Guarantee Schemes Directive)

Taking Europe more seriously? +Lisbon Treaty not only opportunity but obligation +EWS may lead to better scrutiny of documents and awareness of EU issues in general +Motivation for NP to invest in infrastructure

- Growing frustration with polite letters from Commission (symbolic exercise)

Political Dialogue 2006-2009 TOP TEN Communications to the Commission „ „ „ „ „ „ „ „ „ „

Portugese Assembleia da República French Sénat German Bundesrat Swedish Riksdagen Czech Senát UK House of Lords Danish Folketinget Italian Senato Durch Tweede Kamer (jointly EK) Italian Camera dei Deputati

618 131 65 55 51 49 44 35 25 23 16

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German Bundestag House of Commons

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There is a danger that ... national parliaments become obsessed by the early warning mechanism on subsidiarity. It was understood by those of us involved in its drafting that the mechanism ... was not really intended to be used. It is, in Bagehot’s terms, more a dignified part of the European constitutional settlement than an efficient one. ... if it were ever necessary actually to deploy the mechanism to block a legislative proposal, that deployment would signal a critical failure of the normal procedures‘ (A. Duff, MEP).