March 2, 2010
As it is already well known, the new Lisbon Treaty has brought major changes to the “European institutional architecture”. The Institutions have all experienced changes due to the entry into force of the new Treaty. While the big institutional changes such as the creation of the posts of President of the European Council and of High Representative for Foreign and Security Policy have attracted criticism and brought anything but clarity about who should be the person in charge of ensuring the external representation of the European Union, the winners of the adoption of the Lisbon Treaty appear to be the European Parliament and the National Parliaments.
On the one hand, the European Parliament has definitely gained its place as co-legislator as it “shall, jointly with the Council, exercise legislative and budgetary functions”. The Lisbon Treaty has brought over 40 new fields under the co-decision procedure. Consequently, most of the EU legislation will be adopted under this procedure which is now called “ordinary legislative procedure”. Thus, the European Parliament’s powers have been, once again, extended through the reform of the Treaties.
The European Parliament will also have the power to elect the President of the Commission. However, the candidate will be chosen by the European Council who will have to take into account the result of the elections to the European Council. This looks more like a simple right of dismissal as it cannot choose the candidate.
Finally the European Parliament has also increased its influence in the procedure foreseen to amend the Treaties and has gained the power to submit proposals for the amendment of the Treaties.
On the other hand, the early warning mechanism gives National Parliaments the possibility to intervene if the European legislator does not respect the principle of subsidiarity. According to the Protocol on the application of the principles of subsidiarity and proportionality, National Parliaments have the right to receive draft legislative acts of the EU and issue a reasoned opinion on the compliance with the principle of subsidiarity. If one third of the votes allocated under this system to the National Parliaments are expressed against the adoption of the draft legislation due to the failure to respect the principle of subsidiarity, the institution who has issued the proposal – i.e. in most cases the Commission – must review its proposal and decide whether to maintain, review or withdraw it.
Where, under the ordinary legislative procedure, the reasoned opinions issued amount to a simple majority of the votes allocated and the European Commission wants to maintain its proposal, it has to justify why it considers that the principle is respected. The reasoned opinions of the National Parliaments and the justification of the Commission are forwarded to the European legislator. The Council and the European Parliament can decide not to give the proposal any further consideration in case one of the institutions considers that the proposal does not comply with the principle of subsidiarity.
In this system, every National Parliament has been attributed 2 votes which will be equally shared among the two chambers in the bicameral systems. During and after the Convention on the future of Europe, who first came up with this system aimed at involving National Parliaments in the decision-making process of the European Union, the capability of the individual chambers of the National Parliaments to act within 6 weeks was discussed. This period has then been extended to 8 weeks but some doubts still remained about the National Parliaments chambers’ capability to react.
The Conference of Community and European Affairs Committees of Parliaments of the European Union – a body which is still relatively unknown even under its French acronym COSAC – organized several pilot projects in order to verify the interest of the National Parliaments and their ability to react in 8 weeks as foreseen by the Protocol. The response of the National Parliaments to their pilot project has been encouraging. Indeed, almost all the chambers of the National Parliaments replied to COSAC’s latest pilot project within 8 weeks. This project shows that the individual chambers of the National Parliaments have been able to set up the procedures necessary to make use of their newly acquired powers.
Another novelty is provided in Article 8 of the Protocol and concerns the possibility for National Parliaments to bring an action before the ECJ for the annulment of a legislative act on grounds of infringement of the principle of subsidiarity. However, formally the action will have to be launched by the government of a Member State on behalf of the National Parliament or a chamber thereof. In the near future, we might find ourselves in a situation in which a Member State who has voted in favor of the legislation in the Council has to lodge an action for annulment before the ECJ due to the conviction of one of its chambers that this very same legislation infringes the principle of subsidiarity. I am not sure if the rules on procedure of the Court could allow the government of the same Member State – who could be of a different opinion than one of its chambers – to intervene before the ECJ in support of the arguments of the European legislator. It would be funny to see a case “Germany v Council and European Parliament” with the German government also intervening in support of the arguments put forward by the Council and the European Parliament.
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