What role for national parliaments in EU law making?
by Richard Corbett

Reforms over the last two decades, culminating in the Treaty of Lisbon, have established a dual accountability, as the basic mode of EU accountability.  It requires that proposals are:

  • approved by a large majority (QMV = 74% of the votes) in the Council, composed of national ministers accountable to national parliaments

  • also approved by the European Parliament, composed of directly elected MEPs 

This applies notably in the EU's ordinary legislative procedure, budget procedure and for the approval of significant international agreements entered into by the Union.  There are exceptions, in which the European Parliament has a lesser role and/or where unanimity is required in the Council, but in all cases, ministerial approval in the Council is required (1).  It is therefore natural that a national parliament's main opportunity to shape or reject European legislation rests with its ability to determine its minister's position and hold him or her to account (2).

The Lisbon Treaty brought in reforms intended to facilitate such national parliamentary scrutiny. National parliaments must now receive all legislative and budgetary proposals eight weeks in advance of Council deliberation on the matter, giving them more time to examine proposals (and possibly discuss them with their minister), shaping the position that their country will adopt in Council. Shaping their minister's position is actually more important than the new right to formally object to a proposal if they consider that it violates the principle of subsidiarity (the "yellow card" and "orange card procedures"), which has received so much attention. These days, EU legislation is increasingly about modifying existing EU legislation, not about extending the EU's remit into new fields (3).

The argument about whether the EU should deal with the subject was settled long ago. That is why there has only been one "yellow card" procedure so far, (which resulted in the Commission withdrawing its proposal) and the "orange card" has never been deployed. Thinking that the "yellow card" is the main instrument for national parliamentary influence (or that it should be turned into a "red card") is to miss the real issue, which is substance, not subsidiarity.

In any case, given the high level of support needed in the Council to accept proposals, a de facto "red card" can be deployed there  -  by a minority of ministers -  if there is doubt about subsidiarity, or indeed about  proportionality or, crucially,  the substance of a proposal.

But the procedures, methods and traditions for holding ministers to account and shaping their mandate vary considerably - and they are evolving. More parliaments are beginning to follow the Nordic model of ministers appearing before the appropriate parliamentary committee, before they catch the plane to Brussels, to explain, justify (and sometimes even receive approval) for the line they intend to take. For instance, the Irish parliament changed its procedures in this direction last year.

Some national parliaments, however, do very little, and arguably this is where there is a democratic deficit to be found: some governments (admittedly, elected governments) can act at European level with very little parliamentary scrutiny. The UK is a country where there is surely room for improvement, perhaps, like Ireland, drawing on the Nordic experience.

National parliaments together at EU level

Less promising, but often suggested, is the route of creating some sort of new parliamentary body at European level composed of representatives of national parliaments. There are already such bodies: COSAC, Joint Conference on CFSP & CSDP, Joint Committee Meetings on the European Semester, on Europol, and others, as well as the new "Conference" under Art 13 of the Fiscal Stability Treaty (4).

These Inter-parliamentary bodies are used as forums, and as venues to hear reports, ask questions, and hold debates. They are useful for networking and for those most involved in these issues in each parliament to get to know each other and understand each other better. However, none of them have a decision-taking role on legislation, budgets, appointments or dismissals, for good reasons:

  •  Several national parliaments take the view that they mandate their ministers to take decisions in the Council and they would have a procedural/constitutional problem with simultaneously mandating some of their own members to take a decision in another EU body, acting separately from their government .

  •  Indeed, mandated MPs and Ministers, if taking decisions, would presumably vote the same way (duplication). If they didn't, then there would be a domestic political disagreement between parliament and government being played out on the European stage instead of being solved domestically. 

  •  It would be unwieldy: experience with the pre-1979 EP, which was composed of delegations from national parliaments, showed that on particular days entire national delegations would be absent due to important events in their national parliament, thereby making deliberations unrepresentative and majorities haphazard.

  •  It would make the EU's institutional system, that is already difficult for the public to understand, even more complex, creating a new decision taking body alongside the Council, whose members are already accountable to national parliaments, and the directly elected EP.

Nonetheless, stronger reporting requirements to the appropriate inter-parliamentary body with questioning and debates, could be provided for. They should be seen as complementing, not replacing, national parliamentary scrutiny of European affairs. They can deepen the understanding and increase the amount of information available to national parliamentarians.  But the final decisions to be taken are for each parliament separately.

The role of national parliaments in European integration is a topical issue in current political and academic debates. The Treaty of Lisbon significantly expands the influence of national parliaments in EU policy-making. To this end, the new treaty has introduced “Provisions on Democratic Principles” stipulating that “national parliaments contribute actively to the good functioning of the Union”.

During Brussels Think Tank Dialogue 2014, enhancing of the legitimacy of EU policymaking was discussed concerning the future role of the European Parliament and the national parliaments

The euro crisis has led to a renaissance of the intergovernmental method, and the new European Economic Governance has had a strong impact on the budgetary sovereignty of national parliaments. The BTTD has mapped three possible pathways to restore the parliaments' role in EU policy-making:

  • Improve already existing mechanisms, in particular the Early Warning Mechanism for national parliaments, e.g. by means of a clearer definition of the subsidiarity principle as well as longer deadlines and lower thresholds for national parliaments to react to legislative proposals from the Commission.

  • Introduce new mechanisms to increase the influence of national parliaments in EU affairs, e.g. by enhancing role of the Conference of Parliamentary Committees for Union Affairs (COSAC) or by setting up a new forum of national parliaments in Brussels for policy fields where the European Parliament plays no significant role.

  • Let national parliaments have a say in European policy-making by giving them the power to scrutinise and shape their governments' positions before any decisions at EU level are taken as it is already the case in Denmark and Finland, for example.

Deepening EMU

Does the deepening of EMU change all this? Is it qualitatively different? True, we are dealing with decisions that are not necessarily legislative (banking supervision, macroeconomic coordination, etc.) and also with subjects that are key national responsibilities, set in a European context. As President Van Rompuy (himself a former Speaker of a national parliament) said: 

"Of course, as a general rule, accountability for national decisions is via national parliaments, and that of European decisions is ensured jointly by the European Parliament and the Council, whose ministers are accountable to national parliaments – a double safeguard, but a dual complexity. And when a decision involves both national and European competences, it becomes even more complicated. And that's exactly what's happening these days." (5)
But the key is still to ensure that, whether they are scrutinising a national decision by their government, or their government's participation in a European decision, national parliaments are able to ensure accountability and have the tools to do so. The key tool, the ability to scrutinise their national minister, is for each Member State to organise in respect of its own constitution and parliamentary tradition. It does not require a European rule to do so.

Richard Corbett is author of "The Evolving Roles of the European Parliament and of National Parliaments" in "EU Law after Lisbon" by Professors Piet Eeckhout, Andrea Biondi and Stephanie Ripley (2012, Oxford University Press) ISBN 978-0-19-964432-2 and of other books and articles on European affairs. He is a former MEP and currently a member of the cabinet of Herman Van Rompuy, President of the European Council. This article is based on his submission, given in a personal capacity, to the House of Lords Inquiry into the role of national parliaments in the EU. 

1. An exception is where Council has delegated powers to the Commission, though even here it usually retains a power to intervene.
2. This also applies to "intergovernmental" activities, and to the European Council.
3. An exception might be some of the current proposals for financial sector regulations.
4.The Lithuanian Parliament is set to host an initial meeting of the Art 13 Conference, during its government's EU Council-presidency, in Vilnius in October.  The Speakers/Presidents of all 43 chambers of the national parliaments agreed at their meeting in April in Nicosia that the Art 13 Conference should involve the Parliaments of all MS (not just signatories of the Fiscal Stability Treaty.
5.Speech at the Brussels Think Tank Dialogue on 22 April 2013.