The Legisprudential Role of National Parliaments in the European Union

1. The Legisprudential Role of National Parliaments in the European Union

2. Outline 1. National parliaments as legisprudential actors 2. The EWS and the scope of review 3. The “green card” 4. The “red card”

3. 1. National parliaments as legisprudential actors Question: how to frame/conceptualize the role of NPs in EU law-making? Art. 12 TEU and the “European function” of NPs • Information rights • Revision of the Treaties • Control of national governments • Control of the subsidiarity principle • Interparliamentary cooperation

4. 1. National parliaments as legisprudential actors Conceptual/Theoretical proposals • Multilevel parliamentary field (Crum/Fossum) • Euro-national parliamentary system (Fasone/Lupo) • Composite constitutional order (Besselink) Question: what is the overall function or added value for NPs in European law- making?

5. 1. National parliaments as legisprudential actors The legisprudential role of NPs (I) • To promote the rationality of the EU law- making process • To assess on the justification, quality, effectiveness and reasonableness of EU legislation

6. 1. National parliaments as legisprudential actors The legisprudential role of NPs (II) • Systematic coherence and goals of a draft legislative proposal • Justification for intervention or regulation at EU level • Ongoing desirability of norms • Overall proportionality of the intended EU regulation

7. 2. The EWS and the scope of review The subsidiarity principle as a legal principle Subsidiarity control extends to conferral and proportionality Difficulty in separating the 3 principles of art. 5 TEU

8. 2. The EWS and the scope of review Conferral as pre-condition of subsidiarity Inbuilt dimension of proportionality in subsidiarity (“insofar”) Respect for subsidiarity requires the EU measure to be: • Appropriate • Indispensable • Congruent with the objective pursued

9. 2. The EWS and the scope of review Comprehensive model of subsidiarity review: • Can the EU act? (competence) • Shall the EU act? (subsidiarity stricto sensu) • How shall the EU act? (proportionality) It would allow the EWM to promote the legisprudential role of NPs

10. 3. The “green card” Allows NPs to be proactive in the law- making process • Requesting draft legislative proposals • Requesting the review or amendment of existing legislation Allows NPs to address the necessity and justification of legislation Allows NPs to scrutinise existing legislation •

11. 3. The “green card” Informal mechanism (v.g. spontaneous initiative of a group of NPs)? Enhancement of the Political Dialogue? Desirability of formalization through treaty amendment? Which threshold to trigger a green card and produce binding effect? • Advantages of a low threshold

12. 4. The “red card” Would allow NPs to veto draft legislative proposals Crucial question: who should have the power to determine if the principle of subsidiarity has been breached?

13. 4. The “red card” Protocol 2 Lisbon Treaty: NPs assigned crucial task of controlling compliance with subsidiarity • Avoids the dilemma of self-control through EU institutions (namely, the Commission, the Council and the EP) • Externalises the control to Parliaments of Member-States

14. 4. The “red card” NPs control is presently rather weak • “Yellow card” and “orange card” do not bind the Commission to withdraw a proposal • No orange card has been triggered until now • Only 3 yellow cards • Interparliamentary cooperation needs to be strenghtened

15. 4. The “red card” Represents strong empowerment of NPs Need for a high threshold Requires treaty amendment Avoid overvaluation of this mechanism • Requires very strong interparliamentary cooperation • Improbable • Political pressure of both yellow and orange cards

16. Presentation by Luís Heleno Terrinha Universidade Católica Portuguesa Policy Department Citizens’ Rights and Constitutional Affairs Responsible Administrator: Eeva ERIKSSON poldep-citizens@europarl.europa.eu