The Early Warning System for the Principle of Subsidiarity

Constitutional Theory and Empirical Reality

Philipp Kiiver

• Publisher: Taylor & Francis
• Year: 2012
• Print ISBN: 9780415730501
• eBook ISBN: 9781136459849
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book offers a comprehensive systematic analysis of the European Union's Early Warning System (EWS) for subsidiarity, which was introduced by the Treaty of Lisbon. The book includes both a detailed theoretical analysis of the EWS as well as an assessment of how national parliaments have responded to EU legislative proposals under the system. Philipp Kiiver explores whether the EWS could function as a mechanism of legal accountability offering a partial remedy to the European Union's much-discussed accountability deficit. The Early Warning System for the Principle of Subsidiarity provides an overview of the historical developments of national parliamentary involvement in the EU and also considers the broader implications of the EWS, including its relationship to democracy and legitimacy.

The book will be of particular interest to academics and students of EU Law, Constitutional Law and Political Science.

1   Introduction

The Treaty of Lisbon introduced several innovations to the European Union’s institutional architecture. One of the most prominent of them was the inclusion of a so-called early warning system for the principle of subsidiarity.¹ Under this system, national parliaments of the EU Member States are entrusted with the task of reviewing EU legislative proposals and of issuing, if they find that a proposal breaches the principle of subsidiarity, a written complaint called reasoned opinion. Incoming reasoned opinions are counted and weighed as votes: each parliament has two votes, chambers in bicameral parliaments have one vote each. If the number of votes reaches certain thresholds then the initiator of the proposal, typically the European Commission, may withdraw, amend or maintain its proposal but must, in that case, justify its decision. The entry into force of the early warning system marks a culmination of a sequence of Treaty reforms that addressed the principle of subsidiarity and the involvement of national parliaments in EU lawmaking. It was the Maastricht Treaty of 1992 that featured a subsidiarity clause in its text² and two Final Act declarations in its annex dealing, respectively, with the role of national parliaments in the EU and with the cooperation between national parliaments among themselves and collectively with the European Parliament.³ The Treaty of Amsterdam included Protocols on both the details of the application of the subsidiarity principle and on the role of national parliaments in the EU.⁴ And now the Constitutional Treaty and, after it failed to enter into force, its successor instrument, the Lisbon Treaty, included an early warning system based on both Treaty provisions and Protocols.⁵ In fact this system addresses national parliaments and subsidiarity together, by allowing the former to enforce the latter.

Yet while the early warning system (EWS) has been presented as a major selling-point in the ratification process for both the Constitutional Treaty and the Treaty of Lisbon, we should note that it was also met with rather mixed feelings. Political declarations of course stressed what a positive breakthrough this system supposedly was. But a cynic might dismiss the entire EWS as pure window-dressing, and indeed there are several highly critical academic commentaries on it already from the period when the EWS was originally inserted into the Draft Constitutional Treaty drawn up by the European Convention.⁶ Most academic criticism was, and is, based on the observation that the EWS is a non-binding mechanism and does not amount to a ‘red card’. The Commission is at no point obliged to amend, let alone withdraw, any of its proposals irrespective of the number of reasoned opinions issued by national parliaments. The basic feature is a ‘yellow card’. The addition by the Lisbon Treaty of a supplementary mechanism called ‘orange card’, whereby the European Parliament or the Council may reject proposals if more than half the national parliaments’ votes had constituted objections,⁷ still leaves the discretion with the EU institutions and does not amount to a national parliamentary veto power either. A very fundamental observation can therefore be made that essentially the EWS did not grant the national parliaments any rights they did not already have.⁸ The absence of a genuine veto right for national parliaments, while it was widely acknowledged, was not universally criticised, though. Several authors approved of the system as an appropriately ‘soft constitutional solution’,⁹ in that it did not infringe too much upon the Commission’s independence¹⁰ and did not excessively distort or block the smooth running of European decision-making in general.¹¹

On a practical note, it is pointed out by both scholars and practitioners that the time periods for subsidiarity review are prohibitively short and thresholds seem unattainably high so that the EWS may in fact never be triggered. Under the Lisbon regime, national parliaments have eight weeks for their review although in practice this may well be both longer than that and, through an urgency clause that is usually overlooked, significantly shorter than that.¹² Regarding thresholds, to trigger the initiator’s obligation to withdraw, amend or re-justify proposals the EWS prescribes one-quarter of total votes to constitute objections for proposals regarding the area of freedom, security and justice, and one-third for all other proposals.¹³ In an EU with 27 Member States this means 14 and 18 out of 54 votes, respectively. As an illustration, to generate the standard 18 votes one would need negative reasoned opinions originating, for example, in five unicameral parliaments (two votes each), four lower chambers and four upper chambers (one vote each).¹⁴ However, much depends on what one counts as a reasoned opinion, and it shall be argued later on that a broad understanding of the scope of the EWS is in order.¹⁵

Finally, it is pointed out that breaches of subsidiarity do not seem to be a problem in real life. As Raunio notes:¹⁶

The image of Commission and other EU institutions, constantly stretching and overstepping the limits of their powers, is also somewhat outdated. There appears to be a broad consensus, also among national MPs, that the overwhelming majority of the Commission’s legislative proposals have not been problematic in terms of the subsidiarity principle.

The Finnish parliament had reported already in 2004 that it had reviewed all its EU dossiers since Finland’s EU accession in 1995 and that it had not discovered a single case where it might have established a breach of subsidiarity, although possibly of proportionality.¹⁷ Proportionality is however not formally included as a review standard for reasoned opinions under the EWS, in spite of the fact that EU legislative proposals must be justified in the light of both subsidiarity and proportionality.¹⁸ Still, a case can and shall be made that the scope of the subsidiarity principle can and should be interpreted sufficiently broadly.¹⁹

Either way, notwithstanding all these highly critical considerations, there are good reasons to have a closer look at the EWS and to view it in a much more positive light.²⁰ For the truth is that the EWS did not just come into existence on 1 December 2009 when the Lisbon Treaty entered into force. Already in late 2004, when the EU was still anticipating the ratification of the Constitutional Treaty, COSAC, the half-yearly conference of the European affairs committees of the national parliaments and a delegation from the European Parliament, had decided to start experimenting with the EWS as if it was in force.²¹ Furthermore, after the ratification of the Constitutional Treaty had failed, the Barroso initiative committed the Commission to observing the EWS procedure nevertheless.²² This means that when the EWS came into force officially in 2009, already several years’ worth of practical experience as well as correspondence between national parliaments and the Commission had accumulated.²³ This in turn allows us to subject the EWS not only to a theoretical analysis from a legal and political science point of view, but also to an empirical analysis. This empirical analysis first of all reveals that EWS practice in reality does not entirely match the black-letter law. It also allows us to see the EWS in a new light as far as its added value is concerned, and to develop much more robust theories regarding its actual and potential impact on national parliamentary involvement in the EU.

The present volume thus represents an in-depth study of the EWS that includes both a theoretical and an empirical analysis. It first provides an overview of the historical developments of, and the legal and political science literature on, national parliamentary involvement in the EU (Chapter 2). It then thoroughly discusses virtually each and every procedural aspect of the EWS, including implications that are not evident and that are therefore usually overlooked (Chapter 3). The book continues with an empirical analysis of how national parliaments seem to define the principle of subsidiarity based on the wording of their reasoned opinions (Chapter 4). After all, it is known that subsidiarity is hard to define in practice, and this book offers a bottom-up approach based on how parliaments themselves use it on the ground. For that purpose, as well as for the purpose of the other chapters, the book systematically incorporates the body of material that has resulted from the correspondence between national parliaments and the European Commission thus far: again, not just since the entry into force of the Treaty of Lisbon in 2009 but since the start of COSAC’s informal pilot projects in 2004.

The book then goes on to offer two innovative, even unorthodox analytical theories of the EWS. One discusses the EWS as an accountability mechanism (Chapter 5), specifically as an instance of legal accountability. It should be noted that the existing literature does not usually treat the EWS as an accountability regime and, furthermore, tends to associate legal accountability with courts rather than with parliaments. As such, the EWS might turn out to play a role in the EU’s much-discussed accountability deficit. The other theory offered here draws an analogy between the role of national parliaments under the EWS and the domestic consultative role of a council of state as it exists in France as well as in southern European countries and the Benelux countries (Chapter 6). Many national parliaments are still struggling to find a proper role in the EU, and the role of a council of state offers, it is argued, a workable and recognisable role model. The final analytical section (Chapter 7) discusses some broader implications of the EWS, including its relation with democracy and legitimacy as well as the typology of national parliaments as it results from the empirical analysis of EWS practice.

The main argument of this study is that we should not be quick to dismiss the EWS as meaningless, for two reasons. The first is that a national parliament’s participation in the EWS might raise European awareness among parliamentarians, which might in turn translate into greater attention to the political aspects of proposed EU legislation and the government’s opinion on it. Without conferring any significant powers on national parliaments, the EWS might thus become a catalyst for the exercise of those powers that national parliaments already have.²⁴ The second reason is that it is sensible to appreciate the value of the EWS in its own right, not just as a catalyst but also as an actual involvement mechanism, even though it might amount to little more than a minimum standard of participation. The precondition for such an appreciation is that we make sure that our expectations are realistic. This concerns the scope, purpose and effect of the EWS as well as the nature of national parliaments and their interest and capacity to use it. As a start we should, for example, stop assuming that the EWS is primarily about the right to veto EU legislation: such assumption is bound to lead to disappointment. Instead, based on both the constitutional theory and the empirical reality of the EWS, we should accept that it is much more about the duty to justify legislation. Thus, with realistic expectations and an open mind, we should be able to embrace the EWS for what it is: not a panacea, not even a major institutional rupture, but definitely more than mere window-dressing.

2 National parliaments in the European Union

The involvement of national parliaments in the EU legislative process had been one of the most prominent features of the Treaty establishing a Constitution for Europe, its Draft version as presented by the Convention and its successor, the Treaty of Lisbon. However, attention for this issue had already been growing throughout the 1990s in both politics and the literature.

2.1 The European role of national parliaments

In the 1960s the parliaments of the then six Member States of the European Economic Community confined their involvement mostly to the consideration of an annual government report on the progress of European integration.¹ A somewhat greater activity was noticed in 1973 when – along with Ireland – the United Kingdom and Denmark joined the Community. These newcomers were both more sceptical about the merits of ever-closer union and had more robust parliamentary traditions.² The UK Parliament became famous for adopting a scrutiny reserve resolution barring British ministers in principle from agreeing to Council measures pending scrutiny in the national parliament; the Danish Folketing gained notoriety for issuing negotiating mandates to Brussels-bound ministers, although it may be questioned whether the Danish system is truly convincing or, due to the national idiosyncrasies, suitable as a role model for other Member States.³ Still, with progressive integration and thus with the conferral of more competences to European institutions, especially after the adoption of the Single European Act and the Maastricht Treaty, parliamentary scrutiny of governments’ EU policy gained importance in other Member States as well.⁴ The phenomenon national parliamentarians saw themselves confronted with was that legislative powers were delegated to the EU institutions, notably the Council, and therefore to what is domestically the executive. Whereas in a parliamentary system the government is accountable to the national parliament, this is much more difficult to enforce in the context of EU decision-making. Here, after all, the agenda is set externally, transparency is traditionally poor, complexity is high, compromise-building is crucial, and the possibility that individual governments are simply outvoted in the Council makes it hard to allocate responsibility for a certain policy decision with any one participant. Besides, we should not forget that policy preferences or a political culture of benevolent consensus for EU integration, of non-competition with the European Parliament, and of deference to the government in foreign affairs, as well as an absence of salience and of voter interest, are all factors that contribute to a low willingness on the part of parliamentarians to invest time, energy and political capital in European affairs in the first place.

Still, the traditional and, according ...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Preface
• 1. Introduction
• 2. National parliaments in the European Union
• 3. The institutional and procedural logic of the early warning system
• 4. The material scope of the early warning system: Subsidiarity and other criteria
• 5. The early warning system as an accountability mechanism
• 6. The early warning system as legal review: National parliaments as councils of state
• 7. National parliaments in the constitutional reality of the early warning system
• Notes
• Bibliography
• Index