National Parliaments within the Enlarged European Union: From victims of integration to competitive actors? (Routledge Advances in European Politics) [1 ed.] 0415399351, 9780415399357, 9780203962121

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National Parliaments within the Enlarged European Union

This book presents a wide range of perspectives on the role of national parliaments in EU politics and policy-making. Many accounts of the role of national parliaments portray them as passive victims of European integration. This study instead examines their role within the EU policy-making process, looking at efforts to address perceived democratic and information ‘deficits’. Bringing together leading scholars in the fields of European studies, public policy analysis and legislative research, this new volume provides:

• • •

A thorough and wide-ranging synthetic analysis of the position of national parliaments within the EU policy-making structures. A range of detailed country studies, including, for the first time, an analysis of the new member state parliaments in Central and Eastern Europe. An analysis of the significant changes to the position of national parliaments brought about by the recent Convention process and the provisions of the EU’s Constitutional Treaty.

Making an important contribution to an emerging comparative literature on the parliamentary dimension to EU public policy-making, this text will interest students and researchers in the fields of European integration, EU politics and public policy analysis. John O’Brennan is Lecturer in European Politics in the Department of Politics and Public Administration at the University of Limerick, Ireland. Tapio Raunio is Professor of Political Science at the University of Tampere, Finland.

Routledge Advances in European Politics

1 Russian Messianism Third Rome, revolution, Communism and after Peter J.S. Duncan 2 European Integration and the Postmodern Condition Governance, democracy, identity Peter van Ham

8 Ethnic Cleansing in the Balkans Nationalism and the destruction of tradition Cathie Carmichael 9 Democracy and Enlargement in Post-Communist Europe The democratisation of the general public in fifteen Central and Eastern European countries, 1991–1998 Christian W. Haerpfer

3 Nationalism in Italian Politics The stories of the Northern League, 1980–2000 Damian Tambini 10 Private Sector Involvement in the Euro 4 International Intervention in The power of ideas the Balkans since 1995 Stefan Collignon and Daniela Schwarzer Edited by Peter Siani-Davies 5 Widening the European Union The politics of institutional change and reform Edited by Bernard Steunenberg

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14 European Governance and Supranational Institutions Making states comply Jonas Tallberg 15 European Union, NATO and Russia Martin Smith and Graham Timmins 16 Business, the State and Economic Policy The case of Italy G. Grant Amyot 17 Europeanization and Transnational States Comparing Nordic central governments Bengt Jacobsson, Per Lægreid and Ove K. Pedersen

23 The Changing Face of European Identity A seven-nation study of (supra)national attachments Edited by Richard Robyn 24 Governing Europe Discourse, governmentality and European integration William Walters and Jens Henrik Haahr 25 Territory and Terror Conflicting nationalisms in the Basque country Jan Mansvelt Beck 26 Multilateralism, German Foreign Policy and Central Europe Claus Hofhansel

18 European Union Enlargement A comparative history 27 Popular Protest in East Edited by Wolfram Kaiser and Jürgen Germany Elvert Gareth Dale 19 Gibraltar British or Spanish? Peter Gold 20 Gendering Spanish Democracy Monica Threlfall, Christine Cousins and Celia Valiente

28 Germany’s Foreign Policy Towards Poland and the Czech Republic Ostpolitik revisited Karl Cordell and Stefan Wolff 29 Kosovo The politics of identity and space Denisa Kostovicova

21 European Union Negotiations Processes, networks and 30 The Politics of European negotiations Union Enlargement Edited by Ole Elgström and Theoretical approaches Christer Jönsson Edited by Frank Schimmelfennig and Ulrich Sedelmeier 22 Evaluating EuroMediterranean Relations Stephen C. Calleya

31 Europeanizing Social Democracy? The rise of the party of European socialists Simon Lightfoot

41 The Conservative Party and European Integration since 1945 At the heart of Europe? N.J. Crowson

32 Conflict and Change in EU Budgetary Politics Johannes Lindner

42 E-Government in Europe Re-booting the state Edited by Paul G. Nixon and Vassiliki N. Koutrakou

33 Gibraltar, Identity and Empire E.G. Archer 43 EU Foreign and Interior Policies 34 Governance Stories Cross-pillar politics and the social Mark Bevir and R.A.W Rhodes construction of sovereignty Stephan Stetter 35 Britain and the Balkans 1991 until the present 44 Policy Transfer in European Carole Hodge Union Governance Regulating the utilities 36 The Eastern Enlargement of Simon Bulmer, David Dolowitz, the European Union Peter Humphreys and Stephen Padgett John O’Brennan 45 The Europeanization of 37 Values and Principles in National Political Parties European Union Foreign Policy Power and organizational Edited by Sonia Lucarelli and adaptation Ian Manners Edited by Thomas Poguntke, Nicholas Aylott, Elisabeth Carter, 38 European Union and the Robert Ladrech and Kurt Richard Luther Making of a Wider Northern Europe 46 Citizenship in Nordic Welfare Pami Aalto States Dynamics of choice, duties and 39 Democracy in the European participation in a changing Europe Union Edited by Bjørn Hvinden and Towards the emergence of a public Håkan Johansson sphere Edited by Liana Giorgi, Ingmar Von 47 National Parliaments within Homeyer and Wayne Parsons the Enlarged European Union From ‘victims’ of integration to 40 European Union competitive actors? Peacebuilding and Policing Edited by John O’Brennan and Michael Merlingen with Tapio Raunio Rasa Ostrauskaite

National Parliaments within the Enlarged European Union From ‘victims’ of integration to competitive actors?

Edited by John O’Brennan and Tapio Raunio

First published 2007 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York, NY 10016

This edition published in the Taylor & Francis e-Library, 2007. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” Routledge is an imprint of the Taylor & Francis Group, an informa business © 2007 selection and editorial matter, John O’Brennan and Tapio Raunio; individual chapters, the contributors All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data National parliaments within the enlarged European Union: from victims of integration to competitive actors?/edited by John O’Brennan and Tapio Raunio. p. cm. Includes bibliographical references and index. 1. Legislative bodies–European Union countries. 2. European Union countries–Politics and government. I. O’Brennan, John, 1969– II. Raunio, Tapio. JN36.N357 2007 328.4–dc22 2006034973

ISBN 0-203-96212-5 Master e-book ISBN ISBN10: 0–415–39935–1 (hbk) IBSN10: 0–203–96212–5 (ebk) ISBN13: 978–0–415–39935–7 (hbk) ISBN13: 978–0–203–96212–1 (ebk)

Contents

List of illustrations About the contributors Acknowledgments 1

Introduction: deparliamentarization and European integration

ix x xiv

1

JOHN O’BRENNAN AND TAPIO RAUNIO

PART I

National parliaments and European integration 2

Accountability through national parliaments: practice and problems

27

29

MUIRIS MACCARTHAIGH

3

Interparliamentary cooperation within Europe

46

CHRISTINA BENGTSON

4

European scrutiny in national parliaments: individual efforts in the collective interest?

66

PHILIPP KIIVER

5

National legislatures in the EU Constitutional Treaty

79

TAPIO RAUNIO

PART II

National parliaments in the ‘old’ European Union 6

The European Union in national parliaments: domestic or foreign policy? A study of Nordic parliamentary systems HANS HEGELAND

93

95

viii 7

Contents South European national parliaments and the European Union: an inconsistent reactive revival

116

JOSÉ MAGONE

8

The French Assemblée Nationale and the German Bundestag in the European Union: towards convergence in the ‘old’ Europe? 132 CARINA SPRUNGK

9

Scrutiny of EU legislation in the UK parliament: the first thirty years … and beyond?

163

ADAM CYGAN

10 Ireland: enhanced parliamentary scrutiny of European affairs: but is it effective?

178

PATRICIA CONLAN

PART III

National parliaments in the new member states

201

11 The Polish parliament and EU affairs: an effective actor or an accidental hero?

203

ADAM ˜AZOWSKI

12 The role of the Hungarian National Assembly in EU policymaking after accession to the Union: a mute witness or a true controller?

220

´´ GYO ´´ RI ENIKO

13 The National Assembly of the Republic of Slovenia and EU affairs before and after accession

241

PRIMO ¦ VEHAR

14 Parliamentary involvement in the EU accession process: the Bulgarian experience

255

PAVLINA STOYKOVA

15 Conclusion: national parliaments gradually learning to play the European game?

272

JOHN O’BRENNAN AND TAPIO RAUNIO

Bibliography Index

287 307

Illustrations

Figures 1.1 Parliamentary scrutiny of EU affairs

16

Tables 1.1 3.1 6.1 6.2

National parliaments’ adaptation to European integration Involvement by national parliaments in European affairs The five aspects and the two ideal types How EU matters are dealt with in Denmark, Finland and Sweden from five aspects 7.1 The Southern European parliaments

9 47 96 111 118

Contributors

Christina Bengtson received her PhD from the University of Glasgow in 2006. Her research has been on the role of national parliaments in European decision-making, focusing on the Danish, Italian and British parliaments. Publications on the subject include ‘National Parliaments in European decisionmaking. A real prospect or wishful thinking?’, Federal Trust Constitutional Online Paper Series No. 29/03. Patricia Conlan is Lecturer in Law at the University of Limerick, Ireland. A graduate of the National University of Ireland, Galway (NUIG) with BA, LLB and LLM degrees, she was awarded a Dr Iuris by Eberhard-Karls-Universitaet, Tuebingen. She has been Assistant at the Chair of Staats- und Verwaltungsrecht, Voelkerrecht, Europarecht and Auswaertige Politik and a member of an interdisciplinary research group funded by the German Research Council working in the field of international economic law at the University in Tuebingen. Her awards include a Council of Europe Human Rights Fellowship and a DAAD scholarship. She has lectured on training courses for judges and public officials in Romania, Bulgaria, Poland, Slovakia and Hungary and has contributed to courses in the Academy of European Law, Trier, and the Law Society. Her research interests include: The EC as a Rechtsstaat: Ireland as a role model for the candidate countries; enlargement; internal markets (especially free movement of persons); international trade; social policy; labour law and equality. She has published extensively on these subjects including EC/EU Legislation in Ireland (Gill and MacMillan, 1994). Adam Cygan is Senior Lecturer in Law at the University of Leicester, having previously lectured at the University of Nottingham and King’s College, London, where he completed his PhD. His research focuses on the participation of national parliaments in the decision-making procedures of the EU and in particular the role of parliamentary committees. He has published widely in this area including two monographs, The United Kingdom Parliament and European Legislation (Kluwer Law, 1998) and National Parliaments in an Integrated Europe: An AngloGerman Perspective (Kluwer Law, 2001). He has also published a monograph with Professor Erika Szyszczaks, Understanding EU Law (Sweet and Maxwell, 2005),

Contributors

xi

which examines the themes and principles of EU integration from the Treaty of Rome to the Constitutional Treaty. Eniko ´´ Gyo ´´ ri is Counsellor of the Hungarian National Assembly and Visiting Professor at ELTE University, Budapest. She is also Director of Free Europe Centre (a thinktank on European issues) and was the Ambassador of Hungary to Italy from 1999 to 2003. She gained a PhD in International Relations at Budapest University of Economics in 2000. She has published extensively on the role of national parliaments within the European integration process, including Nemzeti parlamentek az Európai Unióban (Osiris Publishing House, Budapest, 2004), and a number of book chapters and articles on the subject. Hans Hegeland holds a PhD in Political Science from the University of Lund, Sweden, and is currently Political Adviser at the coordination office of the Prime Ministers’ Office, Stockholm. He has published widely on parliamentary practice, in the Journal of Legislative Studies and European Integration online Papers (EIoP), among other international journals. In addition he has published Nationell EU-parlamentarism: Riksdagens arbete med EU-frågorna (Santérus Academic Press, Sweden: Lund Political Studies 143, 2006). Philipp Kiiver is Assistant Professor of European and Comparative Constitutional Law at Maastricht University, the Netherlands. In his research he concentrates on the area of accountability and parliamentary oversight. He has in particular been publishing on the role of national parliaments in the European Union, including a monograph The National Parliaments in the European Union: A Critical View on EU Constitution-Building (Kluwer Law International, 2006), an edited volume National and Regional Parliaments in the European Constitutional Order (Europa Law Publishing, 2006) and several articles and book sections. Adam ˜azowski is Senior Lecturer at the School of Law at the University of Westminster (London) having previously worked at the University of Warsaw and as a Senior Researcher in European law at the T.M.C. Asser Institute (The Hague). His research interests include the law of the European Union as well as public international law. Since 1999 he has actively participated in various EU law training programmes for practitioners in Poland, Bulgaria, Romania, Slovakia and Estonia. His research has appeared in the Common Market Law Review, the Oxford Yearbook of European Law, the European Constitutional Law Review, and Public Law Quarterly, among many other international publications. Muiris MacCarthaigh holds a PhD in Political Science from University College Dublin (UCD) and is currently Research Officer with the Institute of Public Administration (IPA) in Dublin and a member of IPSA’s Research Committee of Legislative Specialists. He is also a member of the Governance Research Programme at the Geary Institute for the Study of Social Change at UCD. His

xii

Contributors research interests include models of governance in the public sphere, institutional policy design, and comparative legislative studies. He has published articles and book chapters on legislatures, accountability, and changing modes of governance at national and local level. His most recent book is Accountability in Irish Parliamentary Politics (IPA, 2006).

José Magone is Senior Lecturer in European Politics, Department of Politics and International Studies at the University of Hull. He completed his DPhil at the University of Vienna and has been a Visiting Fellow at a number of European universities. Among his latest publications are The Politics of Southern Europe: Integration into the European Union (Praeger, 2003), The Developing Place of Portugal in the European Union (Transaction, 2004), Contemporary Spanish Politics (Routledge, 2004) and The New World Architecture: The Role of the European Union in the Making Global Governance (Transaction, 2006). John O’Brennan is Lecturer in European Politics at the University of Limerick, Ireland. He has been Visiting Fellow at the European Institute for Security Studies, Paris and the Varna Economics University, Bulgaria. His primary research interest is in the politics and institutional dynamics of EU enlargement. His research has appeared in the Cambridge Review of International Affairs, European Political Science, the Journal of European Integration and the Federalist Debate amongst other international journals. His books include The Eastern Enlargement of the European Union (Routledge, 2006) and The EU and the Western Balkans: Stabilization and Europeanization through Enlargement? (Routledge, 2008 forthcoming). Tapio Raunio is Professor of Political Science at the University of Tampere, Finland. His research interests include the role of national legislatures and parties in European integration, the European Parliament and Europarties, and the Finnish political system. He has published articles in numerous international journals such as the European Journal of Political Research, European Union Politics, Government and Opposition, Journal of Common Market Studies, Party Politics, Regional and Federal Politics, Scandinavian Political Studies and West European Politics. He is also author of The European Perspective: Transnational Party Groups in the 1989– 94 European Parliament (Ashgate, 1997) and (with Teija Tiilikainen) Finland in the European Union (Frank Cass, 2003). Carina Sprungk is a PhD candidate at the Free University, Berlin and is currently affiliated to the University of Victoria, Canada, as a Visiting Professor for European Politics. Her teaching and research interests include compliance, parliamentarism, French politics, European politics, and the implementation of EU policies. She has published on the effects of Europeanization on national decision-making, on compliance with law beyond the nation-state, on the ratification processes of the EU Constitutional Treaty and on national parliamentary scrutiny of EU politics.

Contributors

xiii

Pavlina Stoykova is a PhD candidate in the Department of Government at the University of Manchester. Her research has been focused on the nature of executive–legislative relations in South Eastern Europe, and, more specifically, on their changing patterns in the context of EU accession. She has presented several conference papers on the above topic. Primoû Vehar is a lawyer who is currently providing consultancy services to a number of pre-accession countries of the Western Balkans region with regard to legal harmonization of EU legislation and the role of national parliaments in European governance. For many years he was a public employee in the Slovenian Governmental Office of Legislation, and in the National Assembly, where he actively participated in the Slovenian accession process to the European Union. As a practitioner, his main tasks were not limited to the drafting of legislation but extended to the creation of a new role for the national parliament in EU matters. The focus and emphasis of his research activities are on practical experiences of a new member state, but the constitutional point of view is also included. He has published a number of articles and sections in different books.

Acknowledgments

This book evolved out of a UACES (University Association for Contemporary European Studies) workshop held at the University of Limerick in May 2004. We wish to sincerely thank UACES for its support for the project. We would also like to thank the workshop sponsors, which included the Irish Department of Foreign Affairs (the ‘Communicating Europe’ initiative) and, at the University of Limerick, the President’s Office, the Department of Politics and Public Administration, and the Centre for European Studies. The contributors to this book include both academics and practioners. We would like to thank all of them for their engagement with the project and diligence in meeting deadlines. The book is much the better for the input of those who are involved at the coalface of parliamentary adaptation to EU policy-making in combination with scholars who analyze and reflect upon the significance of ongoing developments. We would also like to thank those individuals who took part in the original workshop but whose contributions are not included in this volume. John O’Brennan would like to acknowledge the financial support of the Irish Research Council for Humanities and Social Sciences (IRCHSS) which funded his Research Fellowship during 2004 to 2006. He would also like to thank the University of Limerick Research Office for seed funding received in support of the project. Thank you also to colleagues and friends who helped in different ways to expedite production of the manuscript: Kim Arnold, Luke Ashworth, Eoin Devereux, Kristana Ivanova, Jordan Jordanov, Catherine Lawless, John Logan, Anthony McElligott, Angus Mitchell, Edward Moxon-Browne, Ruán and Maeve O’Donnell, Hilary Piert, Bríd Quinn, Nicholas Rees, Neil Robinson, Dolores Taaffe, and Alex Warleigh-Lack. At Routledge we would also like to thank Heidi Bagtazo for commissioning the book and Harriet Brinton for assistance with the preparation of the manuscript. In addition we would also like to acknowledge the assistance accorded by three anonymous referees during the review process. Their comments and suggestions were greatly appreciated.

Abbreviations

CAP CDU CEE CF CFSP CMEA CoE COREPER COSAC CSU CT DUE EA EAC EC ECB ECJ ECSC EDC EEA EEC EMU EP ESDP EU EUI EUZBTG FDP FN FRG GAERC

Common Agricultural Policy Christian Democratic Union (Germany) Central and Eastern Europe Constitution of France Common Foreign and Security Policy Council for Mutual Economic Assistance Council of Europe Committee of Permanent Representatives Conference of Community and European Affairs Committees of Parliaments of the European Union Christian Social Union (Germany) Constitutional Treaty Delegation for the European Union (France) Europe Agreement European Affairs Committee European Community European Central Bank European Court of Justice European Coal and Steel Community European Defence Community European Economic Area European Economic Community European Monetary Union European Parliament European Security and Defence Policy European Union European University Institute Act on the cooperation of the Federal Goverment and the German Bundestag in European Union matters Free Democratic Party (Germany) Front National (France) Federal Republic of Germany General Affairs and External Relations Council

xvi Abbreviations GG IGC IIA IR IT JHA JPC LI MDC MEP MP MPF NATO NGO NP NPAA OECD OMC PCF PHARE PM PQ QMV SGAE SDP SEA SEM STV TD TEU UDF UK UMP US

German Basic Law Intergovernmental Conference Inter-Institutional Agreement International Relations Information Technology Justice and Home Affairs Joint Parliamentary Committee Liberal Intergovernmentalist Mouvement des Citoyens Member of the European Parliament Member of Parliament Mouvement pour la France North Atlantic Treaty Organization Non-Governmental Organization National Parliament National Programme for the Adoption of the Acquis Organization for Economic Cooperation and Development Open Method of Coordination Communist Party (France) Poland and Hungary: Assistance for Restructuring Economies Prime Minister Parliamentary Question Qualified Majority Voting Secrétariat generales des affaires européennes Social Democratic Party (Germany) Single European Act Single European Market Single Transferable Vote Teachtaí Dála, Members of the Irish Parliament’s Lower House Treaty on European Union Union for French Democracy United Kingdom Union for a Popular Movement (France) United States of America

1

Introduction Deparliamentarization and European integration John O’Brennan and Tapio Raunio

The role of national legislatures in European integration has received muchneeded attention in recent years. This interest is primarily explained by the rapid growth in the policy competence of the European Union (EU) and by the realization, in line with the deparliamentarization thesis outlined in this chapter, that parliamentary bodies were, both individually and collectively, becoming increasingly marginalized in the EU policy process. Hence both scholars and politicians began to consider ways of making national MPs more involved in the processing of EU matters. In a broad context parliaments are central institutions in European systems of government. They elect and control the government, approve legislation, and as the bodies responsible for amending the constitution hold the ultimate power in society. Yet such constitutional perspective is arguably increasingly divorced from reality. National parliaments are almost without exception portrayed in the literature as reactive institutions, casting rather modest influence on policy initiatives coming from the executive. There is no doubt that the EU has gone through a period of rapid constitutional transformation since the mid-1980s, with a series of Intergovernmental Conferences (IGC) leading to substantial transfers of power from the national level to the European level of policy-making. While scholars could still prior to the Maastricht Treaty (signed in 1992) claim that member states would not delegate powers to the Union in so-called ‘high politics’ areas, these arguments sound somewhat hollow now as the jurisdiction of the EU extends basically to all policy areas, ranging from funding cultural projects to the gradual development of common security and defence policies, so that ‘nearly every conceivable area of policy is now subject to shared national and EU competence’.1 With successive enlargements west (1973), south (1981, 1986), north (1995), and finally, east (2004) the geographic scope of the European project has also extended far beyond its original sphere. The total size of the EU budget is admittedly small, but the redistributive capacity of the Union should not be underestimated, as its agricultural and regional policies have a profound impact on the farming sector and on the less wealthy areas of the Union. The EU deregulates exchange by removing various barriers to trade while simultaneously regulating trade by setting up common standards that apply across the Union. More importantly, the introduction of the

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John O’Brennan and Tapio Raunio

single currency with independent monetary policy decided by the European Central Bank (ECB), together with the increasing coordination of national economic policies, means that the economic policies of member states are to a large extent tied to rules agreed at the European level. And, the decisions of the EU are enforceable by the Commission and the European Court of Justice (ECJ), with the binding supranational legislation setting increasing limits on what national governments can do.2 Despite the economic and political powers of the Union, its decision-making process is still strongly influenced – some would argue even dominated – by national governments. Amendments to the Treaty, the constitution of the Union, are subject to unanimous agreement by the member states, with the EU institutions having no formal role in IGCs. Most of the important policy decisions, such as agreements on the timetables of the Economic and Monetary Union (EMU) and the consecutive enlargements, decisions on key appointments (such as candidates for the Commission President, the President and board members of ECB), and setting the Union’s long-term employment and economic policy strategies are taken by heads of governments in the summits of the European Council, the real board of directors of the Union. Despite the extended application of the codecision procedure, the Council remains still far ahead of the European Parliament (EP) in its legislative powers. The role of the Commission in initiating and implementing legislation is overseen by national governments, whose civil servants participate in the hundreds of committees and working groups that draft the EU’s legislative initiatives and oversee their eventual implementation. The importance of national governments in the EU policy process makes it essential to study the role of national legislatures within the European integration process. After all, the defining criterion of parliamentary democracy is that the government is accountable to the legislature and can be voted out of office by it. However, most of the literature on national parliaments frames national parliaments as the main victims of integration. The next section of this introductory chapter revisits this literature, and presents the main arguments which support the case for national legislatures losing out as European integration unfolds. The following section then examines how national parliaments have responded to this challenge, with the next section explaining how national parliaments become involved in EU affairs. The final section then outlines the structure of the book.

Deparliamentarization – is Europe to blame? According to the so-called ‘deparliamentarization’ thesis, the development of European integration has led to an erosion of parliamentary control over executive office-holders. The argument about deparliamentarization is based both on constitutional rules and on the political dynamics of the EU policy process.3 Constitutionally, the issue is relatively straightforward. Powers which previously were under the jurisdiction of national legislatures have been shifted upwards to the European level – by national governments and legislatures themselves, thereby signalling that the benefits accruing to member states from integration outweigh

Introduction 3 the losses to national parliamentary sovereignty. Amendments to the EU’s constitution are subject to unanimous agreement between the national governments. But, after the negotiations in the IGCs have been completed, these constitutional bargains are usually presented as ‘take-or-leave-it’ packages to national parliaments, where the only options for domestic legislatures are to accept the constitutional bargains without amendment or to reject the packages and plunge the EU into constitutional crisis (as happened when the French and Dutch rejected the Constitutional Treaty in referenda in May and June 2005). Indeed, constitutional bargains between member state governments have only twice been rejected by national parliaments. In 1954 the French National Assembly failed to ratify the plan for a European Defence Community (EDC), and in January 1986 the Danish Folketinget rejected the Single European Act (SEA), only for the will of the parliamentary majority to be overturned by a consultative referendum held in February that year. Politically, in the control of European-level executive powers and in the adoption of legislative acts at the EU level, neither domestic parliaments nor the EP are sovereign bodies. The increased use of qualified majority voting (QMV) in the Council makes it difficult for national parliaments to force governments to make detailed ex ante commitments before taking decisions at the European level. Also, despite its increased role in the EU political system, the powers and legitimacy of the EP fall far short of full compensation for the loss of power of national parliaments. And, even if the EP were to become a true co-legislator with the Council, a section of national MPs would not view this positively as such a move would reduce the powers of national governments in the Council. Moreover, through the centrality of technical expertise in the EU policy-process, the true winners of European integration have arguably been bureaucrats and organized private interests at all levels of government and not directly-elected parliamentarians – the traditional holders of legitimacy in European systems of parliamentary government.4 Research on the impact of the EU on national politics has provided strong support for the deparliamentarization thesis. This research has usually approached the question under the theoretical framework of ‘Europeanization,’ defined originally by Ladrech as ‘an incremental process reorienting the direction and shape of politics to the degree that EC (European Community) political and economic dynamics become part of the organizational logic of national politics and policymaking’.5 Europeanization is hence primarily a top-down concept, employed for analysing the impact of integration on developments at the national level.6 Most of this burgeoning literature has focused on whether the EU alters the balance of power between domestic actors. The EU creates new exit, veto, and informational opportunities for domestic actors and therefore changes the national opportunity structure for exerting political influence. The idea is thus simple: states are not homogeneous, monolithic entities and the process of European integration may empower certain groups or institutions while reducing the power of others. Reviewing briefly this literature, we can identify two partially conflicting schools of thought. According to the liberal intergovernmentalist approach associated with

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Andrew Moravcsik, European integration strengthens domestic governments as they, and not backbench parliamentarians or people outside the executive branch, participate in decision-making in the various EU institutions. The main beneficiaries are the ministers in charge of most ‘Europeanized’ portfolios (notably prime ministers and finance ministers) and the civil servants within ministries responsible for EU matters. The key aspect behind this argument is information. National executives use the European institutions in a two-level game to strengthen their autonomy vis-à-vis other national actors, primarily the representative bodies. The dominant position of domestic governments in both national and European politics, combined with the constant interaction and policy coordination between the two levels, reduces the influence of parliaments at all stages of the decision-making process – hence deparliamentarization.7 According to the multi-level governance scenario, on the other hand, the EU policy process can also weaken the position of the government, as societal groups can bypass the national government and use the new supranational channel for pursuing their policy objectives.8 National executives are significant and probably the most important actors in EU decision-making, but they are not gate-keepers preventing access from domestic groups to the European level. This tendency is facilitated by EU institutions, most notably the Commission and the EP, that have consistently sought to establish and consolidate links with both European and national non-governmental organizations. The introduction of structural funds has strengthened the regional level in several member states, with regional authorities, encouraged by the Commission, circumventing national authorities and establishing direct contacts with the EU bodies. Indeed, as indicated by the thousands of lobbyists working in Brussels, regions and national interest groups make active use of the ‘EU channel’ to achieve their policy objectives. Another aspect of multi-level politics is that the process of integration, and particularly the increasing interdependence of European and national agendas, will reduce the autonomy of all actors with national policy choices constrained by the existing EU rules and legislation and by what is politically feasible in light of the preferences of other member states and the EU institutions. Importantly, while the multi-level governance framework does not posit national governments the same weight as the intergovernmental approach, it does not view national legislatures as beneficiaries of the process either. If anything, their role becomes weaker in the multi-level political system where intergovernmental policy coordination and negotiations are the primary mode of governance.9 Turning to the results of selected key cross-national research projects, the volume edited by Rometsch and Wessels uncovered certain similarities between the member states: the strengthening of the position of the prime minister; the central role of the governments coupled with decentralization and flexibility in decision-making; the bureaucratization of public policy-making; high administrative coordination in national EU policy; and, significantly, low involvement of national parliaments.10 The follow-up volume edited by Wessels, Maurer and Mittag largely confirmed these findings. However, that study argued that national

Introduction 5 parliaments were now starting to be more involved in the EU policy process: ‘It can be concluded that in nearly all Member States, national parliaments have strengthened their formal role in the EU decision-making process. Though decisionmaking continues to be primarily in the hands of governments, their room for manoeuvre in Brussels negotiations will be restricted to an increasing extent by national parliaments and particularly by their specialized committees’.11 Despite such improvement, they concluded on a pessimistic note that ‘continuous deficits in parliaments’ ability to play the multi-level game reduce the influence of national deputies. The involvement of parliaments in the EU policy-cycle remains weak and largely reactive’.12 The volume edited by Kassim, Peters and Wright focused on national coordination of EU policy. Summing up the role of national parliaments in this policy coordination, Kassim observed that parliaments have ‘very little ability to scrutinize Union proposals, still less to influence their content, and are able only in very exceptional cases to direct the actions of their respective governments’.13 Country-specific accounts of Europeanization largely confirm the findings of these comparative projects. Furthermore, EU membership imposes severe constraints on the policy autonomy of the member states and their parliaments. Apart from EU directives that require national transposition, an increasing share of domestic legislation originates in the European Union institutions, increasingly in recent years in the form of policy diffusion and peer pressure under the Open Method of Coordination (OMC) and other ‘soft law’ coordination efforts. However, it must be at the same time emphasized that the prediction made by the Commission President Jacques Delors in the late 1980s about the share of legislation that would flow from Brussels has proven to be quite misplaced.14 Research has shown this share to be much lower, even when including domestic laws that were in some way ‘inspired’ by the EU. For example, Töller demonstrates that while the share of EU-inspired legislation enacted by the German Bundestag has doubled since the mid-1980s, between 1998 and 2002 34.5 per cent of laws approved by the Bundestag were related to the European Union.15 According to Hegeland only 6 per cent of the legislation adopted by the Swedish Riksdag between 1995 and 2004 contained a reference to an EU law.16 Johannesson in turn showed that between 1998 and 2003 20 per cent of Riksdag’s legislation was related to binding EU legislation, with an additional 10 per cent in some way related to the Union.17 In Finland between 1995 and 2003 12 per cent of the laws enacted by the Eduskunta contained a reference to an EU law.18 The most likely explanation for this relatively low share of EU-related domestic laws is that most of the legislation adopted by national parliaments deals with policy sectors where the EU has no formal competence to enact its own laws. This brief overview of recent literature on the Europeanization of political systems shows that the evidence is quite heavily stacked in favour of the executive branch. The executive has strengthened its position, with particularly the status and visibility of the prime minister reinforced through the summits of the European Council and through her leading role in the coordination of national EU policy. The sectorization of EU decision-making puts a premium on policy-specific

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technical expertise, and this coupled with the (alleged) rise of regulatory or managerial style of politics and delegation of authority to various agencies arguably empowers civil servants at the expense of democratically elected officeholders.19 In addition, integration imposes on national parliaments a political environment where not only have the legislatures lost out constitutionally, with power delegated upwards to European institutions, but also politically, as member states are involved in a political system where policies which strongly diverge from the status quo are to an increasing extent in most policy areas no longer feasible. From the point of view of national legislatures, the conventional wisdom thus paints a rather bleak picture. However, to what extent is this alleged deparliamentarization a result of European integration? Comparative studies of parliaments have sought to categorize legislatures with respect to their powers and overall standing in the political system. Since legislatures and national political systems vary quite significantly, the resulting typologies have been rather crude, serving more as indicators of influence than as exact approximations of their powers. Furthermore, the operationalization of parliaments’ influence is highly problematic, as quantitative indicators, such as the ability of the legislature to have its amendments accepted or the use of parliamentary questions, tell us rather little and such activity can in fact also be interpreted as a sign of institutional weakness. Stronger legislatures do not often have to rely on such measures, as they can influence the content of the bills already before they are introduced in the parliament. Such anticipatory behaviour is arguably particularly pronounced in countries with minority or minimum winning coalition cabinets. Two comparative analyses from the 1970s merit our attention here. Blondel measured power as ‘viscosity’ – meaning the ability of the chamber to influence initiatives emanating from the executive.20 In a more developed model, Mezey proposed two yardsticks: the ability of the legislature to modify and veto policy proposals, or to even balance or substitute the executive’s agenda with that of its own; and the support enjoyed by the parliaments among the elites and the public, with the latter particularly relevant for the long-term stability of the legislature.21 These analyses, based mainly on evaluations from the 1960s and 1970s, classified the European legislatures as casting, all things considered, rather modest influence on policy-making. Legislatures were portrayed as reactive rather than active, with their primary function being that of approving – and perhaps amending – initiatives coming from the executive. More recent comparative projects have largely arrived at a similar conclusion. There appears to have also been relatively little change in the overall influence of the parliaments over the decades. If anything, their position has arguably become weaker.22 The problem with these comparative studies is that through focusing on parliaments alone, they fail to take into account broader changes in the respective political systems. Indeed, analysing the development of West European democracies since the Second World War, the volume edited by Strøm, Müller and Bergman shows that in many ways parliaments have become better at controlling governments – they have reformed their rules of procedure and committee systems

Introduction 7 to facilitate oversight of the government, with MPs also making more active use of various control mechanisms such as parliamentary questions.23 However, that study also clearly shows that national parliaments are subject to much more external constraints than before, with particularly global and European rules and the stronger role of courts impacting on the sovereignty of parliaments. Moreover, cabinet duration has increased over the decades, with more stable governments in charge of more professional public administrations.24 European democracies have in the past decades moved towards a more executiveorientated system, with a powerful prime minister in charge of a cabinet, whose ministers have considerable autonomy in their respective policy fields. An increasing share of cabinets stays in office for the whole electoral term, with party groups of the government parties providing the needed parliamentary support. As King pointed out in his seminal contribution, the executive– legislative relationship must not be portrayed as one between two separate institutions, but as a more complex phenomenon, with significant variation across countries.25 The government-opposition dimension crosscuts the institutional divide, and is arguably the more significant of the two. Since government survival depends on the confidence of the parliamentary majority, cohesive party groups provide the necessary means for providing that support. Instead of the whole parliament as an institution criticizing the executive, checking the government takes place largely within parties, for example, through weekly meetings between government parties’ parliamentary groups and the party leaders, including the ministers.26 In member states with cohesive, disciplined parties – such as Austria, Denmark, Finland, Germany, the United Kingdom, Spain, and Sweden – the executive and the parliament are often so intertwined that measuring their independent influence in decision-making is at best very difficult. Information is a key factor in shaping the relations between the government and the parliament. There is no doubt that in all EU member states the government by virtue of its sheer size and the position it occupies within the political system enjoys a huge informational advantage over the legislature. Parliaments can obviously reduce this information deficit through cost-effective procedural reforms. Research has shown that extensive use of committees facilitates stronger government scrutiny. Especially committees with jurisdiction paralleling executive departments, small and stable memberships, and amendment rights are well equipped to exercise oversight of the cabinet.27 Thus, legislatures with strong committees, such as the Nordic parliaments, the Italian Camera dei Deputati and German Bundestag, are normally ranked as the most powerful in Europe. But, despite such investment in committee work, governments remain firmly in control of the parliamentary agenda and the passage of legislation. Nowhere is this more pronounced than in policy initiation. To quote Norton: ‘the effect has been to confirm or to shift the onus for formulating – or “making” – public policy onto government. Whatever the formal status of the legislature, the principal measures of public policy emanate from the executive’.28 With (arguably) modest influence over domestic legislation, analysts have underlined the importance of legislatures

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contributing to regime legitimacy and stability. Parliaments and regular elections provide the MPs and the electorate with a public forum for airing grievances. MPs are subject to more intensive lobbying by interest groups than before, and also contacts between citizens and their MPs have become more extensive.29 However, public support for parliaments seems to be in decline. Strict party discipline, the representation of special interests, and the MPs’ alleged pursuit of self-interest attract most criticism from the citizens. Moreover, citizens may to an increasing extent feel that national institutions, particularly representative bodies, are no longer capable of defending their interests, as real power is seen to lie elsewhere: central banks (including the ECB), large multinational corporations, government, and of course the European Union.30 This brief overview of literature has shown that – at least since the 1960s and 1970s – the executive branch has dominated decision-making in European systems of parliamentary government. European integration undeniably impacts on the work of national legislatures, both through transferring authority on a range of issues to the European level and through (indirectly) influencing also those policy areas still subject to national competence. But, national legislatures were already operating under a multitude of constraints even without any effects directly caused by integration or ‘Europe’. Hence the argument about deparliamentarization, and the role of European integration in contributing to the decline of legislatures, needs to be modified. First, it has been based on an unrealistic conception of parliamentary democracy, and has tended to mistakenly presume some kind of golden era of parliamentary government that existed before the EU cast its shadow over national politics. The same applies to the EU which is often argued to fail the democracy test. Yet such views frequently rest on entirely misleading and unfair assumptions, as Moravcsik has pointed out.31 Secondly, it is wrong to equate lack of active control with no control at all as MPs employ a variety of mechanisms to holding their governments accountable. Informal instruments can be no less effective for being informal in some political situations. Nonetheless, irrespective of the validity of the deparliamentarization thesis, there is no denying that European integration is a major challenge to national parliaments. According to the Europeanization literature reviewed in this section, parliaments have been ‘victims’ of integration. But, as the next section shows, parliaments throughout the EU have gradually become better at playing the European game, exerting more control over their government in EU matters and incrementally accruing more influence on both the rules and the substance of the legislative game.

National parliaments’ adaptation to European integration Legislatures, like any institutions or purposeful actors, respond to changes in their environment. They do this in two ways: first, through reforming their own rules of procedure, and second, through shaping the terms of interaction with other institutions. In the case of national parliaments’ adaptation to European integration, the former has primarily involved the establishment of European Affairs

Introduction 9 Table 1.1 National parliaments’ adaptation to European integration.

Stage

European integration

Individual role

I Limited involvement (1950s to mid-1970s)

Intergovernmental decision-making, with national governments possessing the right of veto Public opinion supportive of integration

Hardly any procedural changes within the national legislatures Low interest by MPs in European affairs

II Responding to the challenge (mid-1970s to the Maastricht Treaty)

Community decisionmaking acquires supranational elements; particularly through the Single European Act Denmark and the UK, two countries with Eurosceptical electorates and traditionally strong parliaments, enter the Community

Establishment of European Affairs Committees by national parliaments

COSAC established in 1989

III Addressing the democratic deficit (Maastricht Treaty onwards)

A series of Treaty reforms results in the EU acquiring more policy-making powers and in majority voting becoming the standard decision rule in EU institutions Public opinion increasingly sceptical of integration

European Affairs Committees strengthen their position vis-à-vis their governments Specialized committees become more involved in EU matters

The role of national parliaments formally recognised in the Treaties: • Declarations attached to the Maastricht Treaty • Protocol on national parliaments (Amsterdam Treaty) • Two Protocols attached to the Constitutional Treaty

Collective role

Assizes held in 1990

Source: Adapted from Philip Norton, ‘Conclusion: addressing the democratic deficit’, Journal of Legislative Studies, 1/3, 1995: 177–93, and Tapio Raunio, ‘Always one step behind? National legislatures and the European Union’, Government and Opposition, 34/2, 1999: 183.

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Committees (EACs) – or EU committees – and the gradual empowerment of sectoral committees in processing EU matters, while the latter covers both amendments to national constitutions and the establishment of various forms of European-level interparliamentary cooperation. The adaptation by national parliaments can be divided into three stages, during which the legislatures have become more involved in the governance of the Union. The analytical framework in Table 1.1 and in the following discussion draws on the categorization by Philip Norton.32 The column ‘individual role’ refers to adaptation within national political systems – that is, those changes that have taken place domestically in the legislature–executive relationship. The column ‘collective role’ in turn refers to both interparliamentary cooperation and to constitutional recognition in the Treaties about the role of national parliaments. During the first stage (limited involvement) national parliaments showed little interest in European integration. This was mainly explained by the political system of the European Community. Following the Luxembourg compromise (1966), Council decision-making was based on unanimity, and thus each government could veto initiatives. Secondly, the competence of the EC was relatively thin, covering mainly commercial and agricultural policies. The Community was thus effectively an intergovernmental organization until the mid-1980s, and national legislatures did not generally perceive that their sovereignty was under threat. And finally, public opinion in the founding six member states – Benelux countries, France, Italy, and West Germany – was supportive of integration, with most political parties also in favour of deeper integration. National legislatures thus remained marginal and passive actors in the arena of EC governance. The situation began to change in 1973 as Denmark and the UK (and Ireland) entered the Community. The membership issue produced a notable cleavage in both countries, with party elites and public opinion much more hesitant about integration than in the other member states. The parliament had also traditionally occupied a central place in both the Danish and British polities. Hence it was no surprise that legislatures in both countries decided to establish EACs in order to keep a closer eye on developments in ‘Europe’. Particularly the model of scrutiny adopted by the Danish parliament was a major breakthrough – albeit one that was viewed with considerable suspicion outside of Denmark as many feared that such comprehensive scrutiny might jeopardize decision-making in the Council. In Denmark the EAC of the Folketinget set up a system where Brussels-bound ministers had to appear before the committee before the Council meeting to explain the position and bargaining strategy of the government and to seek the support of the committee for the proposed course of action.33 In the UK the House of Commons introduced in 1980 the so-called ‘parliamentary scrutiny reserve,’ according to which the British ministers should not give their consent to decisions in Brussels before the Commons had completed processing of the issue. 34 The second stage of the adaptation process, responding to the challenge, thus began tentatively already in the mid-1970s. However, the real spur to change was the internal market project. The Commission launched its White Paper on the single

Introduction 11 market in 1985, and the SEA was signed a year later. From the national parliaments’ point of view, the SEA brought two profound changes: the Community’s jurisdiction was extended to new areas, and the introduction of QMV in the Council – along with the assent and cooperation procedures which strengthened the legislative powers of the EP and the Commission – meant that national governments could no longer block Council decisions. The scrutiny and implementation of internal market directives also increased the workload of domestic legislatures. This was a rather unwelcome reminder of the erosion of national sovereignty, as laws that were previously firmly in the jurisdiction of national parliaments were now increasingly being decided in Brussels. National MPs recognized the need to keep pace with Community politics. This was mainly done by either establishing EACs – the parliaments of Belgium, Greece, Italy (Camera dei Deputati), Luxembourg, the Netherlands (Tweede Kamer), Portugal, and Spain all set up EACs between 1985 and 1990 – or by strengthening the competence of the already existing ones (the first EAC had been established by the German Bundesrat in 1957). Integration matters were also now more frequently debated on the parliamentary floor, with especially the two IGCs on economic and political unions held in 1990–1 receiving expansive attention. The Maastricht Treaty marked a significant change in the process of integration, with the name European Union indicating (at least a symbolic) move from primarily economic integration to the creation of a supranational political community. Majority voting was increased in the Council, the co-decision procedure gave the EP an equal status with the Council in certain issue areas, and the Treaty objectives included such ambitious goals as the single currency, EU citizenship, and the gradual development of a Common Foreign and Security Policy (CFSP). These developments did not go unnoticed among Europeans. The Maastricht Treaty marked by and large the end of passive or ‘permissive consensus,’ as public opinion surveys showed the citizens had become increasingly sceptical of integration. National parties were also struggling to maintain unity on European matters. With policy competence transferred from the national to the European level, and with both the public and the parties divided over Europe, the post-Maastricht debate began to focus on the ‘democratic deficit,’ defined normally as the weak role of directly elected institutions in EU governance, and bridging the perceived gap between ‘Brussels’ and EU citizens. National parliaments were seen as one potential solution to correct the deficit – particularly, but not exclusively, among those that were against the deepening of integration. Almost all national legislatures sought a more active role for themselves, and thus the third stage of the adaptation process (addressing the democratic deficit) began during the ratification of the Maastricht Treaty. The ratification process was overshadowed by tightly contested referenda in Denmark and France. National legislatures were perhaps belatedly realizing the extent to which the successful implementation of the Treaty objectives would change Europe’s political landscape. Some parliaments therefore made their ratification conditional upon receiving more powers vis-à-vis the government in European matters. For example, the French, German, and Portuguese constitutions were amended around this time to give the respective legislatures a stronger role in

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national policy formulation on EU legislation. Other national legislatures sought to establish practices that would at least guarantee them better access to information on EU matters.35 Another important development was the specialized standing committees of national parliaments becoming gradually more involved in European questions. The delegation of authority from the EU Committees to standing committees was in part a recognition of the huge workload of the EACs, but was also motivated by the need to utilize the policy expertise of the MPs. However, this sectoral specialization has proceeded slowly and at a very uneven pace: while in some parliaments, such as the Finnish Eduskunta and the German Bundestag, the role of the specialized committees has by now become institutionalized, in most parliaments specialized committees remain marginal actors in EU matters, and certainly less important than the EACs. In parallel with these national-level developments, the collective role of domestic legislatures also received more attention – both in the form of interparliamentary cooperation and in the role of national parliaments being recognized in the Treaties. The Maastricht Treaty included two Declarations on national parliaments. Declaration No. 13 stated that: The Conference considers that it is important to encourage greater involvement of national Parliaments in the activities of the European Union. To this end, the exchange of information between the national Parliaments and the European Parliament should be stepped up. In this context, the governments of the Member States will ensure, inter alia, that national Parliaments receive Commission proposals for legislation in good time for information or possible examination. Similarly, the Conference considers that it is important for contacts between the national Parliaments and the European Parliament to be stepped up, in particular through the granting of appropriate reciprocal facilities and regular meetings between members of Parliament interested in the same issues.36 Declaration No. 14 tried to breathe life into the ‘Assizes,’ the joint conference of the EP and national parliaments that had convened in 1990: The Conference invites the European Parliament and the national Parliaments to meet as necessary as a Conference of the Parliaments (or ‘Assizes’). The Conference of the Parliaments will be consulted on the main features of the European Union, without prejudice to the powers of the European Parliament and the rights of the national Parliaments. The President of the European Council and the President of the Commission will report to each session of the Conference of the Parliaments on the state of the Union. 37 While Declarations are not legally binding, their inclusion in the Treaty was nevertheless a political breakthrough, as this was the first time that national legislatures were recognized in the ‘constitution’ of the EC/EU. The Amsterdam Treaty (signed in 1997) marked another step forward. Attached to the Treaty was a

Introduction 13 ‘Protocol on the role of the national parliaments in the European Union’.38 Unlike Declarations, Protocols are legally binding instructions for the relevant individuals and institutions. The Protocol consolidated and strengthened the provisions and language of the Maastricht Treaty Declarations. It set an exact time limit which the national parliaments and the EU institutions had to respect, and listed which documents the national legislatures had the right to receive. These included ‘all Commission consultation documents (green and white papers and communications)’ and ‘Commission proposals for legislation as defined by the Council in accordance with Article 151(3) of the Treaty establishing the European Community’. The former were to be sent to the parliaments directly from the Commission, whereas legislative initiatives were to be ‘made available in good time so that the Government of each Member State may ensure that its own national parliament receives them as appropriate.’ The time limit was set at six weeks. Regarding the collective role, the important change concerned the replacement of the Assizes with the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC), which met for the first time in November 1989 following an initiative from Laurent Fabius, then the President of the French Assembleé Nationale. COSAC meets once every six months in the member state holding the EU Presidency, bringing together delegations from the national parliaments’ EACs and from the EP.39 According to the Protocol COSAC ‘may make any contribution it deems appropriate for the attention of the institutions of the European Union’. Third-pillar matters, fundamental rights, and subsidiarity were mentioned as areas where COSAC could be particularly active. However, ‘contributions made by COSAC shall in no way bind national parliaments or prejudge their position’. In hindsight it was not surprising to see the Assizes dropped from the Protocol. The Assizes held in Rome in November 1990 had been dominated by the EP’s delegation, with several national parliaments feeling that the EP had used the Conference to further its own objectives. But the main qualitative leap occurred at the turn of the millennium. Declaration No. 23 of the Treaty of Nice listed four key questions which the next IGC should address, with one of them being ‘the role of national parliaments in the European architecture’.40 And the Laeken Declaration from December 2001 put down more detailed questions about the contribution of national parliaments: ‘Should they be represented in a new institution, alongside the Council and the European Parliament? Should they have a role in areas of European action in which the European Parliament has no competence? Should they focus on the division of competence between Union and Member States, for example through preliminary checking of compliance with the principle of subsidiarity?’41 The role of national legislatures featured prominently in the debates of the Convention that met from February 2002 to July 2003 to draft a constitution for the Union. This was not really very surprising, as 56 out of the 102 members of the Convention represented national parliaments (alongside 28 representatives of national governments and 16 MEPs and two Commission representatives) – thus giving the national parliaments a stronger role than before, both individually and

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collectively, in shaping the EU’s Treaties. The Convention even established a separate Working Group (WG IV), entitled ‘The role of national parliaments,’ for debating the position of domestic legislatures. The Constitutional Treaty, signed in October 2004, is the first time that national parliaments are mentioned in the actual main text of the constitution – as opposed to Protocols and Declarations that are attached to the Treaties. According to Article I-46 (The principle of representative democracy): 1 2

3

4

The functioning of the Union shall be founded on representative democracy. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union. 42

However, the main sections of the Constitutional Treaty dealing with national parliaments are still found in Protocols attached to the Treaty: the ‘Protocol on the Role of National Parliaments in the European Union’ and the ‘Protocol on the Application of the Principles of Subsidiarity and Proportionality’. The former Protocol is designed to make national legislators better informed about EU decisions, while the latter focuses specifically on monitoring the subsidiarity principle.43 According to the Protocol on the Role of National Parliaments in the European Union: Draft European legislative acts sent to the European Parliament and to the Council shall be forwarded to national Parliaments. For the purposes of this Protocol, ‘draft European legislative acts’ shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice, recommendations from the European Central Bank and requests from the European Investment Bank for the adoption of a European legislative act’. This is a definite improvement upon the Protocol in the Amsterdam Treaty, as the legislative initiatives shall now be sent directly to national parliaments by the respective institutions, whereas under the present rules (in the Amsterdam Treaty) the ‘Government of each Member State may ensure that its own national parliament receives them as appropriate’. National MPs also gain better access to non-legislative documents. In addition to the Commission consultation documents (green and white papers and communications) that were already mentioned in the Amsterdam Treaty’s Protocol, the national parliaments will in the future also

Introduction 15 receive the Commission’s annual legislative programme, the annual reports of the Court of Auditors, ‘as well as any other instrument of legislative planning or policy to national Parliaments.’ Moreover, the Protocol states that the ‘The agendas for and the outcome of meetings of the Council, including the minutes of meetings where the Council is deliberating on draft European legislative acts, shall be forwarded directly to national Parliaments, at the same time as to Member States’ governments’. The paragraphs dealing with interparliamentary cooperation just confirm the status quo. The EP and the national parliaments ‘shall together determine how interparliamentary cooperation may be effectively and regularly organized and promoted within the European Union’. On COSAC the Protocol states that: The Conference of European Affairs Committees may submit any contribution it deems appropriate for the attention of the European Parliament, the Council of Ministers and the Commission. That Conference shall in addition promote the exchange of information and best practice between Member States’ Parliaments and the European Parliament, including their special committees. The Conference may also organize interparliamentary conferences on specific topics, in particular to debate matters of common foreign and security policy and of common security and defence policy. Contributions from the Conference shall in no way bind national Parliaments or prejudge their positions.44 The ‘early warning system’ included in the Protocol on the Application of the Principles of Subsidiarity and Proportionality can be primarily seen as an instrument designed to increase the legitimacy of European integration. However, through assigning national parliaments the potential to actually veto or at least obstruct EU legislation, it can also encourage national MPs to invest more resources in processing European issues. According to this system a national parliament can send the Commission a ‘reasoned opinion’ if it believes that the intended legislation violates the principle of subsidiarity. And, if these reasoned opinions represent at least one-third of the votes (at least a quarter in the case of Commission proposals or initiatives emanating from a group of member states under the provisions of judicial cooperation in criminal matters and police cooperation) allocated to national parliaments, the Commission must reconsider its draft legislation. The Commission may then decide whether to maintain, amend or withdraw its proposal.45 This overview of developments clearly shows that national parliaments have gradually improved their position – both individually in the context of their own political systems, and collectively, through interparliamentary cooperation and through gaining recognition in the EU’s constitution. National parliaments have responded quite logically to the empowerment of the EU: they all have established an EAC for co-ordinating parliamentary work in European matters, specialized committees are starting to play a bigger role in processing EU issues, and in general

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MPs pay more attention to EU politics. This is only natural, as the influence of European integration is basically felt in policy areas (and hence in all parliamentary committees). National parliaments have proven that they are capable of institutional adaptation and learning, with each parliament choosing its own method of scrutiny depending on the parliamentary traditions of the country and on what the parliament wants to achieve.46 Whether this amounts to effective control is another matter, but at the very least national parliaments should no longer be simply labelled as losers or victims of integration. The next section explains how national parliaments become involved in EU affairs.

Controlling the government in EU matters National parliaments have gradually attained quite extensive duties and rights in the EU’s political system. Their main function in the EU’s policy process is to control their executives, that is the governments that represent member states in the Council and the European Council. The ability of a legislature to control the government in European affairs depends on a variety of factors that include the constitutional rules and established ‘ways of doing things’ of the country, and party-political factors such as the composition of the governments and the cohesion of political parties.47 This function brings national parliaments regularly into the game, as the Council holds

Figure 1.1 Parliamentary scrutiny of EU affairs.

Introduction 17 meetings during most weeks of the year (excluding EU holidays), and the European Council meets several times every year. National parliaments are also responsible for adopting amendments to the EU’s ‘constitution’ according to respective national constitutional regulations. Finally, national parliaments are involved, in some member states more than others, in the implementation of EU directives when this requires enactment of new domestic legislation.48 As parliamentary scrutiny of EU matters is largely based on controlling the government in individual pieces of supranational EU legislation, it is worth describing briefly how the system works at the national level. The reader should bear in mind that the following description is a simplification of how things work and that there are significant differences between the individual parliaments (Fig. 1).49 As mentioned above, all national legislatures have established EACs, whose task is to coordinate parliamentary scrutiny of European matters and to monitor government representatives in the Council. MEPs are represented in the EACs of the parliaments of Belgium (joint committee of the two chambers), Germany (Bundestag), Greece, Ireland (joint committee of the two chambers), and Malta.50 The process begins with the government submitting to the parliament Commission’s legislative proposals that fall within the competence of the legislature. The government informs the parliament of its stand, and the legislature takes note of the cabinet’s position. As the overwhelming majority of EU legislation is in reality already decided in the Council’s working groups and in the Committee of Permanent Representatives (COREPER), parliaments that only become involved in the process just before the relevant Council meeting have quite marginal possibilities to influence the decisions. It is also essential that the parliament is kept up-to-date, as the Council and the EP, particularly in legislation falling under the co-decision procedure, often quite significantly amend the initiatives. The extent to which legislatures delegate European matters downward to specialized committees varies between countries. In most member states the specialized committees remain sidelined, either because EU matters are centralized to the EAC or because the committees themselves are not interested in processing European matters.51 The same applies to plenaries, debates in the actual chamber of the parliament. The low involvement of plenaries means that the debating function of the parliament has remained marginal in European matters. One explanation for the lack of plenary debates is that political parties – which tend to be divided over integration and are more pro-integrationist than their electorates – have an electoral incentive in downplaying EU issues. Before the Council meeting the EACs receive the agendas of the meetings, in most countries together with government memoranda that explain the impact of the proposed law both domestically and at the European level. The responsible minister then appears, if requested, in person before the committee. The MPs have the opportunity to put questions to the minister, following which the EAC decides if there is a majority in favour or against the government position. There is notable variation in the frequency of committee meetings, with most EACs meeting weekly when the parliament is in session. Considering the work schedule of the Council, it

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is reasonable to assume that the more often the EACs meet, the better positioned they are to control ministers. After the Council meeting the minister reports back to the EAC, appearing in person if so required to give an account of the meeting. The same procedure applies more or less to monitoring European Council meetings and IGCs. The ability to ‘mandate’ the ministers through setting the bargaining range or even issuing explicit voting instructions is usually emphasized in the literature. This results particularly from the Danish system, where the EAC of the Folketinget is famous for its ability to constrain ministers through issuing explicit voting instructions.52 The EACs of the Austrian Nationalrat and the Danish Folketinget have the right to issue binding voting instructions to government representatives. The mandating power of the Austrian parliament is included in the constitution, whereas the practice in Denmark is so institutionalized that it is almost constitutional in character. The Dutch Tweede Kamer has similar powers in Justice and Home Affairs matters as does the German Bundesrat where a proposal requires approval pursuant to domestic law or in instances where the Länder have jurisdiction. However, it must be emphasized that there is huge variation between the parliaments. In most countries the ability to mandate ministers is either completely lacking, or it is rarely exercised. In most of the member states the government merely sends information to the EAC, with a minister, or a civil servant from a ministry occasionally appearing before the committee, usually when more important matters are on the agenda. However, this emphasis on mandating is not entirely unproblematic. After all, the government depends on the support of the legislature (which can throw the government out of office) even without any constitutional powers to mandate the ministers. Therefore governments can be expected to incorporate the preferences of the MPs into their negotiating positions even without any explicit mandating. This applies particularly to issues that require the approval of domestic legislatures, such as IGCs leading to amendments of the EU’s constitution.53 Secondly, while comprehensive and active scrutiny may well be a good strategy, issuing voting instructions may well work against successful defence of national interests. After all, should the EAC tie the hands of the government before the negotiations, this reduced ability of the government to build compromises might result in worse outcomes than what might be achieved with a more flexible bargaining strategy.54 Despite these reservations, regular hearings with the ministers (including the possibility of issuing voting instructions) enable the parliament to engage in a wider consultation and negotiation process with the government than might otherwise be the case. Having explained the ‘standard model’ of parliamentary scrutiny of EU affairs, the final section introduces the research questions that guide the rest of the book.

Outline of the book The book is divided into three sections. Part one examines the main macro issues relating to national parliamentary oversight of EU affairs. As well as outlining

Introduction 19 some of the key concepts in the literature it also addresses issues related to European interparliamentary cooperation, the relationship between individual and collective action which national parliaments engage in across the broad spectrum of EU issues, and the position of national parliaments within the Convention process and the Constitutional Treaty which followed. In Chapter 2 Muiris MacCarthaigh introduces key concepts dealing with political accountability and legitimacy which broadly inform the approach of the book to the subject area. He considers why accountability, and in particular, parliamentary accountability, is so crucial to the democratic process in Europe. He posits accountability as a contested but nevertheless central referent in contemporary social science and explores how parliaments discharge their accountability functions. Introducing EU decision-making into the narrative he also considers the range of current challenges which face national parliaments in their efforts to protect the legitimacy of the political systems which they are embedded in. In the context of new and questionable accountability relationships emerging across the inter-connected arenas of governance in Europe, concerns proliferate about the contemporary scope and nature of parliamentary accountability. MacCarthaigh also demonstrates that the ability of parliaments to effectively control their executive bodies will depend crucially on both the domestic political culture and the particular institutional matrix employed within the legislative arena. And if, as this chapter argues, the EU and Europeanization do indeed erode the influence of national parliaments within local political systems, it is also clear that national parliaments have to some extent benefited from the new focus on accountability and legitimacy as attention has turned toward achieving a suitable domestic ‘fit’ between that which is (in legislative terms) purely local and that which is supranational and European. In Chapter 3 Christina Bengtson assesses the nature of contemporary interparliamentary cooperation in Europe. She identifies a progressive trajectory where national parliaments have become much more proactive in pushing interparliamentary cooperation in the directions they desire. The chapter argues that national parliaments, whilst having a lot in common with the European Parliament, also pursue agendas that differ significantly from the EP. Cooperation in and through COSAC has gradually helped national parliaments to carve out a space for themselves in the EU decision-making arena. Importantly the work of COSAC has helped link the ‘domestic’ and the ‘foreign’ in national policy-making as EU issues are increasingly classified as both. In Chapter 4 Philipp Kiiver considers the role played by national parliaments within the EU process under the rubrics of both individual and collective activities. As individual entities national parliaments, acting in a domestic context, can be effective in calling their governments to account for both their behaviour in the Council and, more broadly, the policies adopted in an individual state as a result of membership of the EU. But what may seem like purely domestic oversight also has a potential collective impact at EU level in that a parliament that ties the hands of its minister in EU negotiations may as a result impede the search for a EU-wide consensus on that issue. Obviously, the greater the number of parliaments that act

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in such a way, the greater the inefficiencies in the collective EU decision-making process. Similarly, as in the French Parliament’s rejection of the EDC in 1954, the decision of an individual parliament to reject an EU constitutional template may have a decisive impact on events at the collective level.55 And although national parliaments can increasingly be viewed as a collective in an EU context the polycentric character of EU governance still does not allow for a genuinely collective role for national parliaments: each parliament still engages primarily with local issues in a local political context. Allowing for this Kiiver argues that recently developed domestic instruments of control such as formal legal provisions for mandating of government ministers and sharper scrutiny in committees means that the dualist role of national parliaments is collapsing. At the very least the domestic oversight of EU affairs can have significant repercussions at EU level. In his contribution to part one of the book (Chapter 5) Tapio Raunio considers the implications of the EU’s Constitutional Treaty for national parliaments, focusing specifically on parliamentary access to information and on the process of monitoring compliance with the subsidiarity principle. He argues that while the Constitutional Treaty will strengthen the position of national parliaments in the EU policy process, this empowerment does not constitute a significant departure from present arrangements. The positive developments in respect of greater parliamentary control evident since the Maastricht Treaty are enhanced again but in the end it is up to national MPs themselves to decide how and to what extent they want to engage with EU affairs. One positive change which the Constitutional Treaty brings is in access to information. National MPs shall receive more documents from the European level, and these documents will be sent directly to parliaments at the same time as to national governments. The so-called ‘early warning system’ established for monitoring compliance with the subsidiarity principle should mean that national parliaments pay more attention to EU matters across the board. But, as Raunio argues, this will depend on a much more substantive investment of time and resources by national parliamentarians. Part two of the volume consists of country studies drawn from the ‘old’ EU member states. The first of these by Hans Hegeland analyses the mechanisms employed by the Nordic parliaments – those of Denmark, Finland and Sweden – in exercising oversight of EU affairs in their countries. Outlining the two ideal types of domestic and foreign policy decision-making processes he argues that EU matters are peculiar in terms of traditional political science thinking. Increasingly it is extremely difficult to separate that what is purely ‘domestic’ and ‘foreign,’ as EU activity encroaches into more and more areas of public policy. Hegeland’s chapter then compares and contrasts the three different models and argues that each parliament deals with the EU neither as domestic policy or foreign policy. Rather he argues the Nordic systems constitute a new kind of model where parliaments have a weaker role in EU policy than they carry out in domestic policy but a significantly stronger role than traditionally was the case in foreign policy. Hegeland also demonstrates that the Danish and Swedish legislatures have evaluated the effectiveness of their scrutiny systems, and both the Swedish Riksdag and the Danish Folketing are attempting to follow the Finnish Eduskunta in

Introduction 21 making specialized committees more involved in the processing of EU issues. Thus the Nordic parliaments seem to stand out from most others within the EU as the most proactive and engaged in EU decision-making. A clear contrast with the Nordic models is evident in the discussion of Southern European parliaments and their approach to EU issues. In his analysis of the parliaments of the four Mediterranean EU countries, usually categorized as laggards in terms of their engagement in European affairs, José Magone examines how the Italian and Portuguese legislatures have, since the mid-1990s, invested considerably more resources in EU matters. The Spanish and Greek parliaments remain, however, very weak vis-à-vis their governments in European matters, with MPs in these two countries in general showing relatively little interest in such questions. In her substantial contribution Carina Sprungk assesses the roles played by the French Assemblée Nationale and the German Bundestag in EU affairs. Despite the different positions occupied by each parliament within their national political system, Sprungk finds striking similarities in how they now discharge their EUrelated functions. Both parliaments enjoy the right to comprehensive information on EU policy-making; in both cases information is processed at a relatively early stage in the policy cycle; and both parliaments have the right to state an opinion on legislative proposals in advance of Council meetings. The parliamentary committees in each country also perform similar functions such as the examination of documents and enjoy similar resources. One key contrast, however, is that the Bundestag enjoys constitutionally enshrined rights to involvement while the Assemblée Nationale commands an inferior legal position. Paradoxically, however, the domestically powerful Bundestag seems to be more reluctant than the relatively weak Assemblée Nationale when it comes to exercising its powers. Whilst this might be put down to the prevailing ‘permissive consensus’ concerning EU affairs within the Bundestag (and throughout Germany more generally) there are other complex phenomena to be considered such as how information is parlayed to MPs and domestic parliamentary rules of procedure. Sprungk demonstrates that in both parliaments a relatively large number of individual MPs as well as the specialized committees and dedicated EACs are active participants in the legislature’s en- gagement with EU policy areas. Interestingly parliamentary involvement tends toward cooperation with the executive rather than conflict. Thus one can identify a definite trend toward convergence of both parliaments in dealing with the EU in legislative and broader political terms. In Chapter 9 Adam Cygan focuses on the United Kingdom and the ‘dualist’ model of scrutiny employed by the Houses of Parliament. In examining how both the Lords and the Commons have sought to retain control over EU affairs Cygan considers the political, legal, and constitutional context in which the scrutiny process has evolved over the lifetime of UK membership of the EU. The principal vehicle for parliamentary scrutiny – the ‘Scrutiny reserve’ – seeks to maximize the executive’s accountability to parliament in EU affairs and is intended primarily to reassure sceptical MPs that the views of the UK parliament do matter and are relevant to EU decision-making.

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In Chapter 10 Patricia Conlan examines the evolution of parliamentary scrutiny in Ireland, focusing on current arrangements and in particular, on the Irish parliament’s Sub-Committee on Scrutiny. The Irish case represents (at least on paper) an especially striking example of enhancement of the powers of national parliaments in recent years. This empowerment evolved in response to the concerns about the legitimacy of the EU decision-making process which emerged with the defeat of the Nice Treaty in the June 2001 referendum. Conlan outlines how the system of scrutiny has been strengthened, demonstrating that there is greater information available, how the committee system has been enhanced, and overall the greater transparency evident within the system. However, she demonstrates equally that the system still leaves a lot to be desired: the enhanced procedures put in place post-Nice and the flexible approach to their operation suggest great potential for effective parliamentary control. But (as in other jurisdictions) parliamentarians are hampered by lack of resources and informational shortcomings. Part three of the book is devoted to analysis of the parliaments from the ‘new’ member states, that is, those states, primarily from Central and Eastern Europe (CEE), which joined the EU in 2004. In Chapter 11 Adam ˜azowski outlines the role played by the Polish parliament – the Sejm – in EU decision-making. Membership of the EU has meant a substantial re-orientation of executive–legislative relations in Poland as in other states in CEE. Under the rubric of the pre-accession process the Sejm played a pivotal role in the transposition of the EU’s legal rulebook – the acquis communautaire – into the domestic legal order. ˜azowski demonstrates that the deparliamentarization thesis applies even more directly to those states that recently acceded to the EU than to the older member states. In Poland most of the legal approximation bills originated in and with the executive; this severely limited the role of the legislature, especially in a context where there was a tight timeframe for negotiation and a rather frenzied period of legislative activity. But with new rules and procedures introduced shortly before accession there are potential instruments available to Polish parliamentarians to exercise a more robust degree of control over executive action. In her contribution on the Hungarian Parliament Eniko´´ Gyo´´ri traces the development of EU affairs in the country and how the Hungarian parliament adopted a model based on existing best practice in the older member states. As was the case in the Polish pre-accession framework the Hungarian parliament continually lost ground to the government as the accession negotiations proceeded. Partly this arose for the same reasons as in Poland but crucially also because no specific rules governing the executive–legislative division of labour emerged until after accession. Thus the Hungarian parliament’s instrument for exercising scrutiny has only been in place since September 2004. Although nominally in a strong position the Committee on European Affairs is hampered by being allowed only late involvement in the decision-making process, the inaccessibility of documentation, and the low levels of knowledge and activity of MPs. And although as in other CEE states Hungary’s specialized committees offer real potential for parliamentary empowerment Gyo´´ri sums up by arguing

Introduction 23 that the Hungarian parliament resembles more a ‘mute witness’ than a ‘true controller’ of EU affairs in a domestic political context. Chapter 13 by Primoû Vehar analyses the Slovenian parliament and its role in EU affairs before and after accession. He demonstrates how the Finnish model was largely adopted in Slovenia as the accession process developed and the parliament became more and more preoccupied with EU issues. The introduction of a European Affairs Committee along with the involvement of horizontal standing or specialized committees means that the Slovenian parliament is potentially an important player in the legislative process. Some of the existing shortcomings which Vehar attributes mainly to the difficulties new member states can expect naturally to experience are likely to diminish over time leaving Slovenia with an effective system of oversight and control. The final country study in the volume by Pavlina Stoykova examines the Bulgarian adaptation to European integration in advance of accession and demonstrates how deparliamentarization has occurred in practice as Europeanization has proceeded apace. Bulgaria’s case is particularly interesting because it demonstrates that in the asymmetrical power context of an accession process the EU acts as a regime maker and the candidate state as a passive regime-taker. However, within that context it is clear that the clear winner in the domestic sense has been the executive, which from an early stage, took charge of preparations for membership and gained more and more leverage over the parliament as EU demands were ratcheted up and the transposition process became the main priority of political activity. The executive’s empowerment thus over time degraded the parliament’s formal competences within domestic decision-making and thus allowed the government to avoid critical and substantive scrutiny of its EU-related activities. And whereas the short-term requirement to speed up the process of domestic legal approximation with EU laws may have been deemed acceptable for Bulgaria it seems clear that the longer-term legitimacy of the EU policy-making process will require a more balanced relationship between the Bulgarian government and parliament. In the sense that the volume’s broad themes of accountability, legitimacy, deparliamentarization and Europeanization can all be demonstrated in the Bulgarian example it seems a good place to conclude this introduction to the book and proceed to part one.

Notes 1 Mark Pollack (2000) ‘The end of creeping competence? EU policymaking since Maastricht’, Journal of Common Market Studies’, 38: 524. 2 Simon Hix (2005) The Political System of the European Union, 2nd edn (Basingstoke: Palgrave); Helen Wallace, William Wallace, and Mark A. Pollack (eds) (2005) Policy-Making in the European Union, 5th edn (Oxford: Oxford University Press). 3 Tapio Raunio and Simon Hix (2000) ‘Backbenchers learn to fight back: European integration and parliamentary government’, West European Politics, 23: 144–51. 4 Torbjörn Bergman and Erik Damgaard (eds) (2000) Delegation and Accountability in European Integration: The Nordic Parliamentary Democracies and the European Union (London: Frank Cass); Hussein Kassim, B. Guy Peters, and Vincent Wright (eds) (2000) The National Coordination of EU Policy: The

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John O’Brennan and Tapio Raunio Domestic Level (Oxford: Oxford University Press); Wolfgang Wessels, Andreas Maurer, and Jürgen Mittag (eds) (2003) Fifteen into One: The European Union and its Member States (Manchester: Manchester University Press). Robert Ladrech (1994) ‘Europeanization of domestic politics and institutions: the case of France’, Journal of Common Market Studies, 32: 69. Maria Green Cowles, James Caparaso and Thomas Risse (eds) (2001) Transforming Europe: Europeanization and Domestic Change (Ithaca, NY: Cornell University Press); Kevin Featherstone and Claudio Radaelli (eds) (2003) The Politics of Europeanization (Oxford: Oxford University Press); Klaus H. Goetz and Simon Hix (eds) (2001) Europeanized Politics: European Integration and National Political Systems (London: Frank Cass); Simon J. Bulmer and Christian Lequesne (eds) (2005) The Member States of the European Union (Oxford: Oxford University Press). Andrew Moravcsik (1998) ‘Why the European Community strengthens the state: international cooperation and domestic politics’, Centre for European Studies Working Paper Series 52 (Cambridge, MA: Harvard University, 1994) in Andrew Moravcsik, The Choice for Europe: Social Purposes and State Power from Messina to Maastricht (Ithaca, NY: Cornell University Press). Liesbet Hooghe and Gary Marks (2001) Multi-level Governance and European Integration (Lanham, MD: Rowman & Littlefield); Ian Bache and Matthew Flinders (eds) (2004) Multi-level Governance (Oxford: Oxford University Press). Arthur Benz (2003) ‘Mehrebenenverflechtung in der Europäischen Union’, in Markus Jachtenfuchs and Beate Kohler-Koch (eds), Europäische Integration, 2nd edn (Opladen: Leske and Budrich). Dietrich Rometsch and Wolfgang Wessels (eds) (1996) The European Union and Member States: Towards Institutional Fusion? (Manchester: Manchester University Press). Wolfgang Wessels, Andreas Maurer, and Jürgen Mittag, op. cit., p. 432. Ibid., p. 433. Hussein Kassim, ‘Conclusion: the national coordination of EU policy: confronting the challenge’, in Hussein Kassim, B. Guy Peters and Vincent Wright, op. cit., p. 258. See also Hussein Kassim, ‘The Europeanization of member state institutions’, in Simon Bulmer and Christian Lequesne. ‘My impression by and large – and apologies to those whose pride in the keen interest taken by their national parliaments in European affairs might be offended – is that there is an unawareness in many national parliaments of the quiet revolution that is taken place, as a result of which 80% at least of economic, financial and perhaps social legislation will be flowing from the Community by 1993’ (Debates of the European Parliament, 15 June 1988: 156–7). Annette Elisabeth Töller (2004) ‘Dimensionen der Europäisierung – Das Beispiel des Deutschen Bundestages’, Zeitschrift für Parlamentsfragen, 35: 33. Hans Hegeland (2005) ‘EG-rättens genomslag i svenska lagar och förordningar’, Europarättslig Tidskrift, 8: 398–9. Christina Johannesson (2005) ‘EU: s inflytande över lagstiftning i Sverigas riksdag’, Statsvetenskapliga Tidskrift, 107: 71–84. Matti Wiberg (2004) ‘Lainsäädäntömme EU-vaikutteisuus luultua oleellisesti pienempää’, Oikeus, 33: 200–6. Giandomenico Majone (ed.) (1996) Regulating Europe (London: Routledge); Mark Thatcher and Alec Stone Sweet (eds) (2002) ‘The politics of delegation: non-majoritarian institutions in Europe’, Special issue of West European Politics, 25. Jean Blondel (1970) ‘Legislative behaviour: some steps towards a comparative measurement’, Government and Opposition, 5: 67–85. Michael Mezey (1979) Comparative Legislatures (Durham: Duke University Press). Philip Norton (ed.) (1997) Parliaments in Western Europe, 2nd edn (London: Frank Cass); Philip Norton (eds) (1998) Parliaments and Governments in Western Europe (London: Frank Cass); Malcolm Shaw (ed.) (2004) ‘Parliamentary democracy today’, Special issue of Parliamentary Affairs, 57. Kaare Strøm, Wolfgang C. Müller and Torbjörn Bergman (eds) (2003) Delegation and Accountability in Parliamentary Democracies (Oxford: Oxford University Press). Ibid.; see also Wolfgang C. Müller and Kaare Strøm (eds) (2000) Coalition Governments in Western Europe (Oxford: Oxford University Press).

Introduction 25 25 Anthony King (1975) ‘Modes of executive–legislative relations: Great Britain, France and Germany’, Legislative Studies Quarterly, 1: 11–34. 26 Knut Heidar and Ruud Koole (eds) (2000) Parliamentary Party Groups in European Democracies: Political Parties behind Closed Doors (London: Routledge). 27 Ingvar Mattson and Kaare Strøm (1995) ‘Parliamentary committees’, in Herbert Döring (ed.) (1995) Parliaments and Majority Rule in Western Europe (Frankfurt: Campus). 28 Philip Norton, ‘Introduction: The Institution of Parliaments’, Philip Norton, op. cit., 1998, p. 5. 29 Philip Norton (ed.) (1999) Parliaments and Pressure Groups in Western Europe (London: Frank Cass). 30 Philip Norton (ed.) (1997) ‘Parliaments and publics’, special issue of Parliamentary Affairs, 50, 3. 31 Andrew Moravcsik (2002) ‘In defence of the democratic deficit: reassessing legitimacy in the European Union’, Journal of Common Market Studies, 40: 603–24. 32 Philip Norton (1995) ‘Conclusion: addressing the democratic deficit’, Journal of Legislative Studies, 1: 177–93; see also Tapio Raunio (1999) ‘Always one step behind? National legislatures and the European Union’, Government and Opposition, 34: 182–6. 33 There is a rich literature on the Danish scrutiny system. See for example Finn Laursen (2005) ‘The role of Parliamentary Committees in European scrutiny: reflections based on the Danish case’, Journal of Legislative Studies, 11, 3/4: 412–27. 34 See the chapter in this volume by Adam Cygan. 35 Philip Norton (ed.) (1996) National Parliaments and the European Union (London: Frank Cass); Andreas Maurer and Wolfgang Wessels (eds) (2001) National Parliaments on their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos). 36 ‘Declaration on the Role of National Parliaments in the European Union, Treaty on European Union (consolidated text)’, Official Journal C 325, 24 December 2002. 37 Ibid. 38 Protocol on the Role of the National Parliaments in the European Union, Treaty of Amsterdam, Official Journal C 340, 10 November 1997. 39 See the chapter in this volume by Christina Bengtson. 40 Treaty of Nice, Official Journal C 80, 10 March 2001. 41 Laeken Declaration – The Future of the European Union, The Laeken European Council, 14–15 December 2001. 42 Treaty establishing a Constitution for Europe, Official Journal of the European Union 2004/C 310/01. 43 These protocols are analysed in more detail in the chapter by Tapio Raunio. 44 Protocol on the Role of National Parliaments in the European Union, Treaty establishing a Constitution for Europe, Official Journal of the European Union 2004/C 310/01. 45 Protocol on the Application of the Principles of Subsidiarity and Proportionality, Treaty establishing a Constitution for Europe, Official Journal of the European Union 2004/C 310/01. 46 Katrin Auel (2005) ‘Introduction: the Europeanization of parliamentary democracy’, Journal of Legislative Studies, 11: 303–18; Katrin Auel and Arthur Benz (2005) ‘The politics of adaptation: the Europeanisation of national parliamentary systems’, Journal of Legislative Studies, 11: 372–93; Arthur Benz (2004) ‘Path-dependent institutions and strategic veto players: national parliaments in the European Union’, West European Politics, 27: 875–900. 47 On research explaining cross-national variation in the level of control, see Torbjörn Bergman (1997) ‘National parliaments and EU Affairs Committees: notes on empirical variation and competing explanations’, Journal of European Public Policy, 4: 373–87; Torbjörn Bergman (2000) ‘The European Union as the next step of delegation and accountability’, European Journal of Political Research, 37: 415–29; Lisa Martin (2000) Democratic Commitments: Legislatures and International Cooperation (Princeton, NJ: Princeton University Press); Tapio Raunio (2005) ‘Holding governments accountable in European affairs: explaining cross-national variation’, Journal of Legislative Studies, 11: 319–42; Olivier Rozenberg (2000) ‘The involvement of national parliaments in European Union Affairs: empirical test of two variables’, ECPR Joint Sessions of Workshops, March, Turin; and particularly, Thomas Saalfeld (2005) ‘Delegation or abdication? Government backbenchers, ministers and European Union legislation’, Journal of Legislative Studies, 11: 343–71. 48 Bergman, op. cit. (2000) and Martin, op. cit. (pp. 164–89) showed that effective ex ante parliamentary involvement is correlated with higher implementation rates of EU directives.

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49 For detailed information on the scrutiny systems in the national parliaments, see COSAC (2005) Third bi-annual Report: Developments in European Union, Procedures and Practices, Relevant to Parliamentary Scrutiny (Brussels); and the chapters in the volumes edited by Katrin Auel and Arthur Benz (2006) The Europeanisation of Parliamentary Democracy (Abingdon: Routledge); Andreas Maurer and Wolfgang Wessels (2001) National Parliaments on their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos); Philip Norton (1996) National Parliaments and the European Union (London: Frank Cass); Eivind Smith (1996) National Parliaments as Cornerstones of European Integration (London: Kluwer Law International); and Finn Laursen and Spyros A. Pappas (1995) The Changing Role of Parliaments in the European Union (Maastricht: EIPA). For an early analysis of the scrutiny systems in those member states that joined the Union in 2004, see Klára Szalay (2005) Scrutiny of EU Affairs in the National Parliaments of the New Member States: Comparative Analysis (Budapest: Hungarian National Assembly). 50 Philipp Kiiver (2006) The National Parliaments in the European Union – A Critical View on EU ConstitutionBuilding (The Hague: Kluwer Law International), pp. 117–18; In Greece the idea was to improve the flow of information between the parliament and the EU. However, this has contributed to the committee’s weakness by making scrutiny of government behaviour difficult given the presence of MEPs that have no formal link with the government. See Dionyssis G. Dimitrakopoulos (2001) ‘Incrementalism and path dependence: European integration and institutional change in national parliaments’, Journal of Common Market Studies, 39: 405–22. 51 Torbjörn Bergman et al., op. cit., p. 175, concluded that in no member state legislature does the plenary assembly get actively involved in EU matters, with plenary involvement categorized as ‘weak’ in thirteen countries and as only ‘moderate’ in Finland and Italy. See Torbjörn Bergman, Wolfgang C. Müller, Kaare Strøm, and Magnus Blomgren (2003) ‘Democratic delegation and accountability: cross-national patterns’, in Kaare Strøm, Wolfgang C. Müller, and Torbjörn Bergman, op.cit. 52 Finn Laursen, op. cit. 53 Tomas König and Simon Hug (2000) ‘Ratifying Maastricht: parliamentary votes on international treaties and theoretical solution concepts’, European Union Politics, 1: 93–124. 54 See, for example, Arthur Benz, op. cit., p. 876. Katrin Auel and Arthur Benz, op. cit., pp. 373, 379. This is exactly the reason why the Austrian parliament does not really use its constitutional right to mandate the ministers. Soon after Austria had joined the Union, the minister for agriculture had been told by the EAC not to agree in the Council to lower standards of animal transportation than those in force in Austria. It appears that a compromise could have been reached, but when the minister phoned the parliament in Vienna in order to request a modification to his mandate from the EAC, he could only get hold of the Nationalrat’s night-watch. As a result, the minister had to stick to his mandate and was outvoted in the Council. The outcome was less favourable to Austria than the terms of the proposed compromise. See Philipp Kiiver, op. cit., pp. 54–5; Wolfgang Urbantschitsch (1998) National Parliaments in the European Union – The Austrian Experience (Graz: Forschungsinstitut fur Europarecht, Karl-Franzens Universitat), p. 54. 55 Of course this is even more likely in the case of national referendums on EU constitutional matters as was demonstrated dramatically in Ireland in June 2001 in the case of the Nice Treaty, and, subsequently, in France and the Netherlands in May and June 2005 in respect of the EU Constitutional Treaty.

Part I

National parliaments and European integration

2

Accountability through national parliaments Practice and problems Muiris MacCarthaigh

Introduction The accountability of those elected to power to their electorate is the defining feature of democratic government. Within the European Union (EU), there is considerable debate concerning the legitimacy of decision-making institutions and the efficacy of existing procedures and practices for ensuring accountability. On the one hand, it is posited that the Union is fundamentally flawed in terms of the accountability of agenda-setters to the Union’s citizens, and that the more powerful the institution, the greater the lack of accountability and transparency. On the other hand, the Union is regarded as one of the most open and accountable forms of trans-national governance in existence, with substantial opportunities for citizens and member states to influence its evolutionary trajectory and challenge its decisions. While both views have merit, competing interpretations of accountability have acted as catalysts for a range of institutional and procedural reforms within the EU. Not least, it has spawned considerable debate over the role of national parliaments in an ever-closer Union, as the chapters in this volume demonstrate. Before more detailed country studies and macro issues are examined, it is worth considering why accountability, and in particular parliamentary accountability, are such valued commodities in European democracy. That is what this chapter seeks to do. Section one examines the term accountability as a fundamental but contested concept in contemporary social sciences. Section two looks in some detail at parliaments and how they perform their accountability functions. The final section looks at current challenges to national parliaments in their pursuit of political and administrative accountability. In concluding, it is argued that, in the context of changing political and administrative environments, accountability through public institutions such as parliaments remains central to the success of democratic government in contemporary Europe.

Defining accountability Accountability has become a ubiquitous term in much of contemporary political discourse. Current notions of ‘good governance’ are, in effect, concerns with creating and operating accountable forms of government. A consensus has emerged that maximizing accountability, regardless of institution or context, is desirable. Lack of accountability, on the other hand, is identified as a root cause of

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many organizational and procedural failures. As use of the term ‘accountability’ has increased, so too has its popular meaning expanded beyond its original confines of simply responsibility for action.1 Today, accountability frequently denotes issues (or mechanisms) of oversight, scrutiny, sanction, stewardship and/ or control. In terms of policy formation it is a continuous process of informing, justifying, criticizing and discussing, as well as detecting and punishing as necessary.2 It is also used in dichotomous fashion and so political and administrative accountability are juxtaposed, as are personal and professional accountability, individual versus collective accountability and even broad and narrow accountability.3 Many contemporary conceptions and models of accountability have emerged from organizational theory4 and the structure of accountability regimes (particularly reporting mechanisms) also forms a large part of contemporary literature on corporate governance.5 As traditionally understood, an accountability relationship implied a set of shared understandings between two actors, in which the task to be achieved and the sanctions for failure were mutually understood. The threat of being called to account ensures that it is in the actor’s interest to comply with the wishes of the principal. Clarity is essential within all accountability relationships as difficulties are most likely to occur when there is room for competing interpretations as to how an accountability relationship should work. This is particularly true within political settings where responsibilities for action or non-action are frequently subject to considerable examination and contestation. Mulgan demonstrates that accountability relationships are context-specific, and proposes that the key issues to be addressed in any accountability relationship are these: who is accountable; to whom are they accountable; what are they accountable for; and how is this accountability manifested.6 While this schema is appealing in its simplicity, it is a particular feature of accountability that it is now employed to serve an everbroadening range of purposes, from bureaucratic reconfiguration to political expediency. Within modern governments, commitments to accountability at every level of public life are commonly announced, and they have multiplied in response to perceived crises of public confidence in governing institutions. Accountability is therefore in reality a mutable concept, used to serve a range of purposes. In his dissection of public accountability, Bovens notes that the seemingly relentless pursuit of accountability is conducted to fulfil several purposes.7 Firstly, a hallmark of democratic government is that a means exists for holding the executive to account, and that it operates in a public manner. Secondly, effective accountability arrangements can prevent the accumulation of power in particular organs of state. Related to this, it can also prevent the emergence of monopolies in respect of public goods and the incidence of corruption. Finally, an effective accountability regime can enhance the quality of public administration through encouragement of learning and reflection. As with many aspects of institutional design, however, the pursuit of accountability may not always achieve desired results. For example, as Dubnick8 identifies in terms of bureaucratic output, more accountability is often portrayed as offering greater levels of openness and transparency, better capacity for challenging

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accumulations of authority, better behaviour from public officials and, crucially, better performance. However, he proposes that more accountability does not necessarily result in better performance, and that a point of diminishing returns may be reached. Behn also notes this ‘accountability dilemma’ (or paradox) faced by those involved in devising and implementing policy.9 Accountability for decision-making has become an expected norm in public life in the Western world. The market-style public sector reforms of the last twenty years (see below) place significant emphasis on the rights of individual citizens to have direct access to processes of decision-making that affect them, and to avail themselves of methods of redress. Similarly, the European Union has attempted to be a model of publicly accountable governance. Particular emphasis has been placed on empowering citizens to directly intervene and participate. For example, the Union’s official website contains a myriad of documents including public consultations, reports of meetings held by the many official organs of the Union as well as contact points for citizens to either make suggestions or retrieve further information. For the principal governing institutions of the EU, there appear to be mixed views as to how public accountability can be successfully balanced with operational autonomy. The Commission actively encourages direct connections with citizens and representative bodies. Indeed, its main source of information on breaches of EU legislation is the hundreds of outside complaints it receives annually directly from citizens, pressure groups, trade unions, or other such bodies. The Council sustained much criticism for the secretive nature of its meetings, and this has resulted in some light being shed on the process of the meetings. The recent recommendation by the EU Ombudsman that more Council meetings be conducted in open session has resulted in webcasts of policy debates on the environment, competitiveness, employment and transport.10 What remains subject to much debate is what exactly the role of directly elected members is or should be, and the European Parliament’s search for popular approval is not assisted by the erosion of the status of MEPs through the granting of alternative routes of accountability to the wider European demos. Thus, the problems of accountability, representation and legitimacy that have concerned academics and practitioners at national level also occur increasingly at EU level.11 The much criticized ‘democratic deficit’ that has plagued the expanding Union in fact refers to a deficit in satisfactory accountability arrangements whereby the people feel they are not in control of the institutions of the Union or that their views are not fully taken into consideration. Membership of the Union has been identified as eroding the significance of national institutions such as Courts of Final Appeal and national parliaments, and in response there has been considerable analysis of methods to redress this problem. In particular, national parliaments have emerged as offering a means of resolving this problem. Much of the concern about accountability deficits is framed in the context of principal–agent relationships, which are arguably the most developed and easily understood of accountability frameworks. The principal–agent model was devised to help explain the theory of modern bureaucracy. As principals do not always

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have adequate expertise or resources to perform certain duties, they defer to agents who do. However, while adequate oversight and reporting arrangements are necessary for a principal–agent relationship to be successful, the relationships are inherently subject to inefficiencies. As Kiewiet and McCubbins identify, ‘agency loss’, whereby the agent is less than optimal in performing the function delegated to it, is a difficulty faced by all principals.12 Hazards include ‘hidden information’, whereby the agent does not reveal all relevant information, or ‘Madison’s dilemma’ which posits that the more power given to the agent, the more danger there is. In fact, much of constitutional design is about minimizing such liabilities in the democratic process and the use of adequate checks and balances must be comprehended in this context. In the context of competing values and norms, it is clear that for accountability to be manifested institutions are necessary. This is of particular importance in this volume, as both the principal institutions of the EU and its citizens place increasing emphasis on national parliaments as a mechanism for ensuring greater public accountability for decision-making. As noted by O’Brennan and Raunio in the introduction to this volume, the position of national parliaments in the accountability chain from citizen to EU has been gradually enhanced since the Maastricht Treaty’s ‘Declaration on National Parliaments’ argued that it was important to encourage the involvement of parliaments in EU decision-making. Subsequent Treaties have contained various Protocols which have recognized the role of national parliaments in facilitating better information flows and scrutiny of EU legislation. We turn now to consider why parliamentary accountability is such a fundamental part of democratic life in EU member-states.

National parliaments and parliamentary accountability The State represents the highest degree of development in a country and by extension this demands that public governance is consistently of the highest order. As the only directly elected public institutions in most democracies, legislatures are expected to ensure that optimal standards of political and administrative accountability are consistently achieved. The growth of the ‘executive state’ in recent years has made this role increasingly difficult to realize in most Western states, and has resulted in institutional innovations (such as committee systems) within legislatures for the purpose of increasing scrutiny and addressing informational asymmetry. However, there has also been an increased emphasis on creating alternative accountability mechanisms that provide information on the political and administrative spheres directly to the public.13 The impact of these new accountability mechanisms on existing relationships has only recently begun to be addressed, and as detailed below, may have unintended consequences for political accountability. Given its subjectivity, political accountability has always been one of the most contested of accountability relationships, and its practice has become subject to competing interpretations. At one extreme in the understanding of political

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accountability in a national context, government, or rather the governing party or parties, are held accountable to the public via national elections. However, as elections are infrequent, a more persistent method of political accountability is required and in almost all EU member states, parliament is given this task of executive oversight and scrutiny. Indeed, in addition to representing the people, producing legislation, voting on public expenditure and deliberating over policy, holding an elected government to account is one of the principal tasks performed by national parliaments. Parliament is also the principal national venue in most member states for the pursuit of administrative accountability. Indeed, as the introductory chapter identifies, the defining feature of a parliamentary democracy is the accountability of the government to the legislature and the ability of the legislature to vote out the government. In normative understandings of parliamentary democracy, all elements of the executive are in some way accountable to the legislative arm of state. Government ministers are individually and collectively responsible for the work of the bureaucracy and it is the existence and practice of parliamentary accountability that ensures the pursuit of efficiency of systems of public administration. If public servants did not feel their activities and decisions could be scrutinized at any time by members of parliament, the potential for inefficiencies would increase. Such moral hazard develops in the context of weak institutional checks, and the emergence of new monitoring and reporting requirements can be understood as compensating for such.14 While contemporary notions of accountability have emerged from administrative law, accountability can also be traced back to the examination of the state’s finances or accounts. Financial reporting is in fact the most established form of accountability in the sense of reporting to one’s principal, and has been institutionalized through professional standard-setting.15 Parliament is also the venue for the formal allocation and distribution of public monies, and the pursuit of financial accountability is an integral part of both political and administrative accountability. In most legislatures, special arrangements exist for financial procedures and governments tend to be given procedural and constitutional control of the public purse. The study of national parliaments continues to be a dynamic sub-field of political science, sustained by innovative new approaches to understanding the roles, powers and functioning of legislatures.16 Much of this work is concerned with how legislatures exercise control over the executive. Coinciding with a new emphasis during the 1990s on the roles and duties of national parliaments in the European Union,17 significant strides have also been taken in the systematic comparative analysis of national legislatures using institutional theory drawn from a rational choice perspective.18 The comparative approach to legislative studies has contributed significantly to our understanding of how legislatures have responded to the European project. Recent exceptions notwithstanding,19 the paucity of comprehensive crossnational surveys of the relationship between national parliaments and the EU system of governance reflects a conceptual and practical uncertainty concerning

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the role of national parliaments in that system. This has not been helped by the wide variation as to what constitutes a ‘national parliament’ in a member state – with interpretations ranging from the unicameral Danish Folketing to the Belgian combination of federal and regional assemblies. The assumption that national parliaments have a single collective will is of course problematic (see Kiiver, this volume). Not least, it ignores the many tensions and conflicts within legislative arenas such as government versus opposition, and frontbenches versus backbenches on both sides of the House. 20 The work of Arend Lijphart21 in classifying governments as operating under either a ‘majoritarian’ or a ‘consensus’ institutional configuration has proved particularly durable. He argues that, for a variety of reasons, the closer a parliament is to the ideal-type Westminster parliament, and therefore the more adversarial and zero-sum the nature of political engagement, the less effective we can expect the structures of parliamentary oversight in it to be. Conversely, in consensual systems, parliamentary politics are more co-operative. The frequency of coalition and minority governments ensures that the opposition is not removed from the decision-making process, and the internal structures of parliament provide for robust opposition checks on government. As the institutional arrangements in consensual systems ensure the government is more responsive to parliament’s right to scrutinize government, Lijphart argues that consensual governments are generally more accountable than majoritarian ones.22 In Westminster systems, the structures of parliamentary oversight tend to become embroiled in partisan politics, rendering them less effective. It also means that parliament is less able to exert a restraining and accountability-enforcing influence on government. As well as identifying whether a national parliament has a more consensual or adversarial parliamentary culture, its internal procedural and institutional arrangements will also influence the efficacy of the accountability regime practised within it. Therefore, rules of procedure, the existence of a second chamber, and the existence of a well-resourced committee system become key issues as it is through these institutions that the accountability of governments is pursued. While EU matters are often referred to as sui generis, falling somewhere between domestic and international law, how they are processed and considered by national parliaments will be influenced by existing accountability procedures. Parliamentary accountability in practice As Tsebelis identifies, constitutions often formally bestow institutional advantage on governments by giving them extensive agenda-setting powers.23 For example, Article 45 of the Constitution of the Fifth French Republic permits the government to declare a bill to be urgent, thus reducing the number of rounds through which the bill will shuttle between chambers. Article 68 of the German Basic Law allows the government to ask for a question of confidence whenever it deems appropriate. Constitutions may also informally grant such advantages by establishing organizational formations which allow political parties to ‘capture’

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key institutions. For example, as noted above, the logic of the Westminster system is power centralization and political parties in such systems are incentivized to practise a form of ‘winner takes all’ style of political engagement. Leaving constitutions aside, like any other organization with a large membership, parliaments need rules and procedures to operate effectively. If parliamentary accountability is to be realized, appropriate mechanisms must be put in place to pursue it. However, as time is the most important commodity in parliamentary systems, the most hardfought of parliamentary battles are frequently concerned with control of the parliamentary agenda. To be sure, informal constraints cannot be discounted and governments are always unlikely to agree to proposals which they know will not be acceptable to their parliamentary parties, or the voting public. Thus, the existence of what Schattschneider famously referred to as ‘non-decisions’24 can play an important role in determining what governments decide at domestic and EU level. Once proposals are accepted by the party or parties in government, they must then withstand the rigours of parliamentary accountability and opposition criticism. The most common mechanisms for the pursuit of parliamentary accountability are debate during the legislative process, various forms of parliamentary questions (PQs) and deliberation over motions and resolutions. Added to this is the increased use of parliamentary committees, particularly for dealing with issues emanating from the EU, as later chapters demonstrate. Also, individual legislatures may adopt special mechanisms to consolidate their ability to hold government to account in respect of EU affairs. For example, the national parliaments of Denmark, Finland and Austria have well-documented special ‘mandating arrangements’ which can impose negotiating limits on ministers in advance of Council meetings.25 However, for the majority of national parliaments, it is through the routine parliamentary mechanisms for dealing with domestic policy issues that most EU matters are processed. National parliaments devote most of their time to legislation. The refinement of legislation provides parliamentarians with opportunities to probe the intentions of government and bring them to public attention. As Wheare identified, ‘[legislatures] are asked to consider Bills and, in the course of doing this, they look into administration’.26 While the majority of national parliaments in the EU are unicameral, in bicameral parliaments the legislative process usually offers second chambers their best opportunity for enquiring into the work of the executive. There are a wide variety of procedures followed in the processing of legislation, from the obligatory five-stage procedure in the House of Commons at Westminster to the Lower House of the Slovenian parliament, where a Bill can be swiftly processed if fewer than ten members are in opposition to it. Parliamentary accountability often suggests both ex post and ex ante activity. A useful distinction may be drawn here between scrutiny and oversight in respect of domestic (and EU) legislation. While scrutiny refers to the process of examining completed or near-completed legislation and providing final assent for its acceptance, oversight refers to early engagement at the policy formulation stage of legislation. Reflecting this distinction, Norton identifies the ability of a parliament

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to influence the shape of national legislation as a variable for the comparison of legislatures.27 Similarly, national parliaments vary in their capacity to involve themselves in various stages of proposals for EU law.28 Both scrutiny and oversight are therefore integral parts of the process of parliamentary accountability and are dependent on the provision of adequate resources for parliamentarians to engage in them. Normally, governments retain distinct advantages over non-government members and parties in the formation of legislation. With few exceptions, they can schedule the time of debate and set conditions that are favourable to themselves. Döring refers to this practice of deciding the parameters for discussion as an ‘ingenious agenda-setting device’29. Article 49.3 of the French Constitution provides for the (in)famous guillotine procedure in the Assemblée Nationale. In its original incarnation, it was created for the purpose of protecting government legislation and permits a government to attach a vote of censure to the proposed bill.30 However, as it has spread to other jurisdictions, it has become associated with the imposition of time limits on debate, and criticized as an impediment to parliamentary accountability. While oversight of government legislation requires concerted action by parliamentary parties, parliamentary questions facilitate oversight by individual members of parliament. PQs in various guises are common to all EU national parliaments and when compared with presidential forms of government, are one of the defining features of parliamentary democracy. An effective PQ is theoretically the most potent facility at the disposal of non-government members to obtain information and to hold ministers (and therefore government) to account. However, PQs are often used not only to elicit information, but to provide information to the chamber. In his analysis of PQs in Finland (where the procedure for PQs is even enshrined in the Constitution),31 Wiberg argues that parliamentary questioning provides an outlet for tensions to be released in the political system, which in turn contributes to the legitimacy of that system.32 No two national parliaments employ the same format for questions, and variations exist for the amount of time allowed, the number of questions asked and even the relevance or appropriateness of questions (as judged by the Speaker of the House). Another common device for pursuing executive accountability is the procedure of interpellation. As with PQs, this is an inquisitorial process which begins with a question being put to a minister. Unlike routine PQs, however, a statement normally accompanies the question, and the received answer can be debated and, in some national parliaments, may even result in a vote. Also, the procedure can be broadened to involve other members. Interpellation may not necessarily result in action being taken by governments, thus demonstrating its value as a primarily informative exercise. Parliaments may also deal with EU matters through ad hoc debates and motions put before the chamber by government or opposition. Parliamentary parties can benefit from the expertise of party members in the European Parliament, and many national parliaments allow MEPs to address their committees, in spite of the overlap in electoral mandate. While the demands of EU membership have not

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resulted in substantial changes to the internal rules of national parliaments (which tend to prioritize domestic matters over EU affairs),33 they have had noteworthy impact on the role and work of parliamentary committees. Committees represent the single most significant institutional development in democratic legislatures in the modern era and their development and effectiveness in European parliaments has been well documented.34 For parliamentary scholars, a well-resourced and active committee system is often regarded as a proxy for an effective legislature. For example, Mezey proposed that for a legislature to have strong policy-making power, it requires a highly developed committee system.35 A common theme in much of the literature on parliamentary committees has been the importance of committee reform in reversing the ‘decline of parliament’ thesis that was popular in the post-war period up to the 1970s. However, as with all political institutions, there is a wide range of variation in the design and functioning of parliamentary committees.36 Committees offer parliamentarians considerable opportunity to assert their role as national representatives and legislators, as well as scrutinizers of government. They allow members to engage more productively with legislation and political actors such as interest groups, and offer much potential for better policy-making. Rational choice institutional theorists identify four functions for which committees are used by legislatures.37 These are: 1 2

3

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Economies of operation. Committees working in parallel can process parliamentary work more efficiently than the chamber sitting in plenary. Gains from trade. Different committees will influence legislation in different ways and therefore expect other committees to give deference to their decisions. Also, committees help overcome collective action problems. Information acquisition. Through specialization, committee members will gain expertise about the consequences of a bill and therefore the legislature can trust the committee to perform better than the chamber as a whole. Partisan coordination. Committees provide party leaders with structures to control their parliamentarians. Thus political parties can have an influence on the work of committees.

As well as routine legislative work, committees provide an ideal mechanism for other non-legislative functions. In particular, committees have been used to perform investigations and make recommendations on certain issues, including matters initiated at an EU rather than national level. In performing their duties, and to overcome the organizational difficulties brought on by committees with large memberships, committees may also appoint sub-committees to engage in particular functions. In short, parliamentary committees are no longer simply what Woodrow Wilson famously referred to as ‘little legislatures,’ and in the context of an enlarging EU have assumed a central role in the scrutiny of European legislation, as later chapters detail. While active parliamentary committees have become an integral part of many European parliaments, they are inherently at tension with the classical Westminster

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model of parliamentary government, particularly with the emphasis in such systems on executive control. Indeed, a notable feature of consensus-type parliaments is the ‘embeddedness’ of committees in the work of parliament, as opposed to the suspicion cast on them by the executive in Westminster-style legislatures. Developing these points in their examination of European legislatures, Lane and Ersson38 identify a dichotomy between those that exhibit either ‘cabinet parliamentarism’ or ‘committee parliamentarism’. The former is applicable to majoritarian-style parliaments where the executive (through the medium of political parties) holds considerable veto power over the work of parliament and hence the nongovernment parties. In these legislatures, those committees that do exist tend to reflect this distribution of power in favour of the government and committee members often have no particular expertise in the policy field of the committee they sit on. Members may even be appointed to committees simply to ensure government majorities. Decision-making occurs in a more centralized arena, normally the cabinet, and the legislature and committees perform largely consultative roles. Committee parliamentarism, on the other hand, is associated with more consensual parliamentary systems in which opposition parties enjoy more substantial input into legislative proposals. Thus committees can often sustain minority governments by allowing opposition parties to be effective without necessarily holding executive positions.39 In systems based on committee parliamentarism, committees are considered to be vital co-operative structures in which a communitarian atmosphere can be developed.40 In contrast to the idealtypical majoritarian system, conflict can be overcome through compromise. As noted in the introduction to this volume, all EU member states now have specialist European Affairs committees. While the establishment and use of a parliamentary committee to help a legislature deal with the demands of membership might have been a logical step in many of these states, for the majoritarian legislatures it was a more significant departure. Britain established a European Affairs committee not long after joining the Community, in advance of the introduction of the experimental ‘Crossman’ joint committees. Similarly, the Irish parliament did not have a functioning committee system when it established a committee on ‘Secondary Legislation of the European Communities’ in 1973. Many other member states did so after the 1985 Single European Act (SEA) and the subsequent requirement to implement internal market directives. The creation of COSAC in 1989 provided another useful focus for the work of the European Affairs committees. Invariably, sectoral committees have also become involved in scrutinizing EU matters, and are often the recipient of information from the European Affairs committees, which can act as both a ‘filter’ and ‘post-box’ on information emanating from the central EU institutions. Procedures and practices of parliamentary accountability are fundamental therefore to the democratic process and to legitimizing matters of domestic and EU policy. It is for parliamentarians themselves to decide on the portion of their time which they are prepared to devote to scrutiny and oversight of policies and legislation. This decision may be influenced by the standing of parliament in the

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context of changing modes of governance in contemporary Europe, and the influence of these changes on parliamentary accountability, to which we now turn.

Challenges to parliamentary accountability As it stands, parliamentary accountability in most member states is challenged not only by the upwards transfer of power to the EU, but also by a range of other phenomena. While some have been brought about by administrative reform, others concern more fundamental changes in the relationship between citizens and the political sphere. In this final section, therefore, we consider the impact on parliamentary accountability of new public management-style bureaucratic reforms, the processes of agencification and depoliticization, and the creation of alternative avenues for pursuing political accountability. Bureaucratic reform In response to various public demands, including efficiency in public spending, improved service quality and effective use of public resources, many European states have undergone a series of public sector overhauls during the last twenty years. Some of these reforms have also been pursued in order to achieve more control by politicians over their bureaucracy and more accountability to elected institutions such as parliaments. If anything, the reforms have demonstrated the malleability of the public sector and the ability of differing styles of public administration to deliver broadly similar results. However, as Pollitt and Bouckaert identify,41 not all the goals sought have been achieved in the wave of new public management reforms. Encouraged by the EU (and OECD), there is significant cross-fertilization between states on methods of improving service delivery and directly providing consumers of services (citizens) with information about how decisions are made. In particular, the focus on outcome measurement has augmented the requirement for new mechanisms of what may be referred to as public accountability. Public accountability bypasses traditional intermediary actors such as politicians by providing the consumer of public services – the citizen – with information directly and through a variety of formal mechanisms and institutions. A useful example here is the development of Freedom of Information legislation in many Western jurisdictions. Freedom of Information allows citizens to directly access information concerning their personal details as well as on the decision-making process as appropriate. While such legislation has been generally well received, its introduction is not without consequence. It may reasonably be argued that it detracts from the role of parliamentarians, who may previously have been called on by the public to seek information via the mechanisms outlined above, such as parliamentary questions. While this is only one example, a consistent criticism of the public sector reform agenda is that it has placed too much stock on the reconfiguration of the public sector to match the growing complexity of policy formulation and implementation.

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The subsequent imposition of managerial organizational frameworks has been achieved at the expense of the political sphere, and the role of established public institutions such as parliaments has not received similar detailed attention. In many cases, established norms and accountability arrangements (such as the convention of ministerial responsibility) have been replaced by legislative and regulatory frameworks that fail to appreciate the nature of political involvement in decision-making. As Mulgan identifies, much of new public management is in fact ‘highly ambivalent’ about political control and accountability.42 Similarly, Pollitt and Bouckaert argue that politicians may need some form of training in order to develop their understanding of the reforming public sector.43 Bureaucratic reform, therefore, has been somewhat deficient in its integration of established conventions of parliamentary accountability into new public sector managerial practices Agencification As part of the public sector reform agenda, there has been a mushrooming of specialist public bodies or agencies in many parts of the EU.44 The process of ‘agencification’ has proved particularly problematic for parliamentary accountability. Many such agencies are concerned with issues of regulation, policy implementation and coordination, yet ministers may view them and their operations as existing outside of their realm of responsibility to parliament. Sometimes, this is in fact why agencies are established, to remove them from political interference or to provide space for policy development and implementation without short-term partisan considerations. However, ministers who attempt to publicly disassociate themselves from the failure of such agencies may still sustain significant political criticism, and as Hogwood et al. discovered, agencies involved in politically sensitive issues tend to attract above average attention.45 Flinders points out that the use of such ‘delegated public bodies’ and public-private partnerships severs the direct link between parliament (via ministers) and elements of the bureaucracy.46 Many agencies tend to have results-based objectives, and also place a large emphasis on providing information on their activities directly to the public. Indeed, some agencies are established with the specific remit of pursuing political and administrative accountability in order to address a perceived deficit in such accountability through parliamentary means (below). Depoliticization The creation of state agencies which are by design not accountable to the public or politicians is part of a wider phenomenon of ‘depoliticization’. Depoliticization posits that, under constant attack and subject to insatiable public demands, governments try to deflect accountability by portraying policy issues as being outside of their remit or control. Instead, the requirements of European Union membership, the necessity for professional expertise, or even the demands of ‘globalization’ are employed as explanations for the adoption of particular policy actions or decisions.

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Depoliticization is particularly evident in the growing phenomenon of outsourcing executive activities to private actors. In so doing, accountability is altered, with less emphasis on inputs and more on the outcomes of work; and less opportunity for parliament to question ministers in respect of the performance of the activity in question. The growing emphasis on the part of parliamentary committees (and the media) on results and the introduction of performance indicators across all elements of the public sector has reduced concern with the means through which such results are achieved.47 It should be noted, however, that depoliticization is not necessarily detrimental to the successful functioning of the state. For example, the assumption by the European Central Bank (ECB) of control over certain member states’ interest rates, has been almost universally welcomed as an important step for economic stability in the EU by protecting national economies from short-term political interference. However, the essence of depoliticization – the removal of the political class from key areas of state activity – raises fundamental questions about the development of democratic government and the role of parliament as the central accountability forum in the state. Alternative avenues of accountability A final challenge to parliamentary accountability stems from what may be regarded as a decentralization of political and administrative accountability to other accountability institutions. In response to the many challenges to its traditional position as the locus of both political and administrative accountability, many national parliaments have resorted to extra-parliamentary forms of retrospective and prospective enquiry. The existence of many of these new bodies has occurred in tandem with the processes of agencification, depoliticization and public sector reform described above. The wave of corruption scandals that swept across Europe during the 1990s exposed the comparative weakness of national parliaments to prevent abuses of power and to sanction those involved.48 The subsequent expansion of quasi-legal and judicial mechanisms of accountability has in many cases further undermined the role of national parliaments, though some have managed to initiate reforms in order to strengthen their capacity for scrutiny. For example, the Dutch Tweede Kamer has recently reasserted its right to conduct formal inquiries where witnesses may be subpoenaed. The Belgian parliament has increased the powers of parliamentary committees to pursue inquiries. The recourse to legal procedures to enforce accountability raises questions concerning the separation of powers between the pillars of democratic states, and politicians complain about the courts deciding what the legislature can and cannot do. Apart from judicial avenues of pursuing accountability, many agencies now perform many of the state’s duties in terms of administrative and political accountability. Independent monitoring bodies and regulators charged with ensuring the highest standards of public accountability are employed. These bodies are non-elected and, ironically, the exclusion of elected politicians from their ranks is regarded as adding to the legitimacy of their decisions. In particular,

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bodies established to regulate elections and other aspects of political life such as party funding have become more common. This is part of an underlying trend identified by Mair which sees political parties moving more away from their role as social actors towards being state actors in response to an increasingly volatile and non-voting electorate.49 As evidence of this he notes the dependence of political parties on state funds rather than resources provided by membership, the subjection of parties to state laws and regulations governing internal organization, and the increased emphasis by parties on their role as governing rather than representative agencies. The political and administrative environment in which parliamentary accountability is practised is constantly changing, and the developments described above demonstrate this. The complexity of modern administration and the changing nature of the relationship between citizens and the state inevitably raise questions concerning the connection between the executive and legislative pillars. More often than not, national parliaments and parliamentary accountability are accused of being irrelevant and outdated, but these accusations fail to appreciate the legitimizing functions of parliament and the importance of pursuing accountability through public institutions.

Conclusion: the need to reaffirm parliamentary accountability Improving accountability has become so common a catchphrase within national and EU settings that criticism of the concept is uncommon. Pursuing ever more accountability is not without cost, however, and more efficient ways of ensuring that agents are performing as principals desire are constantly sought. In any event, no accountability mechanism is in itself watertight, and issues of trust and personal responsibility must come into play for a healthy system of government to function. As the proliferation of new accountability relationships continues apace, questions inevitably arise concerning the role of parliament and parliamentary accountability. As demonstrated above, parliamentary accountability faces challenges from many quarters other than those which have arisen in the context of EU membership. Of particular interest is the emergence of alternative institutions for political accountability. However, as Peters and Pierre indicate, the ultimate responsibility for accountability has to reside with public institutions such as national parliaments and policy choices made by governments must still be legitimized through conventional means.50 As the principal representative institution in most democratic states, national parliaments are uniquely charged with ensuring the accountability of both the political and administrative spheres simultaneously. The ability of parliaments to effectively hold executives to account is significantly dependent on both the culture of political engagement and the institutional configuration within the legislative arena. Rules of procedure for debates and questions, as well as the powers and independence of parliamentary committees, will shape the effectiveness of parliamentary accountability. While special procedures may exist in some national

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parliaments for EU matters, EU legislation that is of significance to an individual member-state will invariably be addressed through established oversight and scrutiny practices. Other forms of administrative and political accountability cannot attain the democratic imprimatur necessary for public trust, and accountability for political decisions cannot be transferred to non-elected bodies. Only parliament can bestow legitimacy on political power and decisions on public policy. As the country studies later in this volume demonstrate, something of a paradox arises in the context of the relationship between national parliaments and the EU. Conventional understandings have it that the EU erodes the influence of national parliaments in a variety of ways, yet mounting concern over accountability and democratic legitimacy within the Union has benefited national parliaments by refocusing attention on their role and function. Given their position as the most important national institution common to all member states, they should continue to be considered in the context of changing modes of national and international governance.

Notes 1 For more on this see the seminal article by B. S. Romzek and M. Dubnik (1987) ‘Accountability in the public sector: lessons from the Challenger tragedy’, Public Administration Review, 47: 227–38. 2 R. Mulgan (2003) Holding Power to Account: Accountability in Modern Democracies (London: Palgrave Macmillan), p. 239. 3 P. G. Thomas (2003) ‘Accountability’, in B. G. Peters and J. Pierre (eds), Handbook of Public Administration (London: Sage), p. 552; M. Bovens (2006) ‘Analysing and assessing public accountability: a conceptual framework’, European Governance Papers (EUROGOV) No C-06-01, www.connexnetwork.org/eurogov/pdf/egp-connex-C-06-01.pdf. 4 See, for example, work by M. Bovens (1998) The Quest for Responsibility: Accountability and Citizenship in Complex Organisations (Cambridge: Cambridge University Press), pp. 50–1. 5 See, for example, G. Procter and L. Miles (2003) Corporate Governance (London: Cavendish); and E. Sternberg (2004) Corporate Governance: Accountability in the Marketplace (London: Institute of Economic Affairs). 6 R. Mulgan, op. cit., note 1, pp. 22–30. 7 M. Bovens, ‘Analysing and assessing public accountability: a conceptual framework’, pp. 24–6. 8 M. Dubnick (2005) ‘Accountability and the promise of performance: in search of the mechanisms’, Public Performance and Management Review, 28, 3: 376–417. 9 R. Behn (2001) Rethinking Democratic Accountability (Washington, DC: Brookings Institution Press). 10 This followed a complaint by a German MEP that, by meeting in private, the Council was in breach of the Treaty of the European Union, which commits the Council and other Community institutions to take decisions ‘as openly and publicly as possible’. 11 C. Harlow (2002) Accountability in the European Union (Oxford: Oxford University Press). 12 D. R. Kiewiet, and M. D. McCubbins (1991) The Logic of Delegation: Congressional Parties and the Appropriations Process (Chicago: University of Chicago Press), pp. 22–38. 13 R. Mulgan, op. cit., note 1. 14 For more on this see K. Strøm (2000) ‘Delegation and accountability in parliamentary democracies’, European Journal of Political Research, 37, 3: 261–86. 15 M. Dubnick, op. cit., note 7, p. 385. 16 P. Norton (ed.) (1990) Legislatures (Oxford: Oxford University Press); D. M. Olson and M. L. Mezey (eds) (1991) Parliaments and Public Policy (Cambridge: Cambridge University Press); G. W. Copeland and S. C. Patterson (eds) (1994) Parliaments in the Modern World: Changing Institutions (Michigan: University of Michigan); P. Norton (ed.) (1998) Legislatures and Legislators (Aldershot: Ashgate);

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34

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Muiris MacCarthaigh A. Lijphart (1999) Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (London: Yale University Press); H. Döring and H. Hallerberg (eds) (2004) Patterns of Parliamentary Behaviour (Aldershot: Ashgate). L. Flintermann, A. W. Heringa and L. Waddington (eds) (1994) The Evolving Role of Parliaments in Europe (Antwerp: Maklu); P. Norton (ed.) (1996) National Parliaments and the European Union (London: Frank Cass); E. Smith (ed.) (1996) National Parliaments as Cornerstones of European Integration (London: Kluwer Law International; A. Maurer and W. Wessels (eds) (2001) National Parliaments on their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos). While Cox and McCubbins’s (1993) did break the mould with respect to European legislatures, it is only with Herbert Döring’s edited volume Parliaments and Majority Rule in Western Europe (New York, St Martin’s Press, 1995) that we see the first complete analysis. Döring and Hallerberg (2004) develop aspects of this work further. P. Kiiver (2006) The National Parliaments in the European Union: A Critical View on EU ConstitutionBuilding (The Hague: Kluwer Law International). R. B. Andeweg and L. Nijzink (1995) ‘Beyond the two-body image: relations between ministers and MPs’, in H. Döring (ed.), Parliaments and Majority Rule in Western Europe (New York: St Martin’s Press), pp. 152–78; A. King (1976) ‘Modes of executive–legislative relations: Great Britain, France and West Germany’, Legislative Studies Quarterly, 1, 1: 11–34. A. Lijphart (1984) Democracies (London: Yale University Press); (1999) Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (London: Yale University Press). A. Lijphart, Patterns of Democracy, note 16, pp. 288–9. G. Tsebelis (1995) ‘Veto players and law production in parliamentary democracies’, in H. Döring (ed.), Parliaments and Majority Rule in Western Europe, p. 101. E. E. Schattschneider (1960) The Semi-Sovereign People: A Realist’s View of Democracy in America (New York: Holt, Rinehart and Winston). Many new EU member states have also adopted this procedure but there are differences in scope of how ‘binding’ the national parliament’s decisions are. K. C. Wheare (1968) Legislatures (London: Oxford University Press), p. 90. P. Norton (ed.) (1990) Legislatures (Oxford: Oxford University Press). In its third bi-annual report, COSAC categorized member states according to whether they had adopted either document-based or else mandating systems for monitoring EU affairs. It argued that ‘the principal feature of a document-based approach is a sift of EU documents at the early stages of the decision making procedure’. COSAC (2005) Third Bi-annual Report: Developments in the European Union Procedures and Practices Relevant to Parliamentary Scrutiny (COSAC: Luxembourg), p. 10. H. Döring (1995) ‘Time as a scarce resource: government control of the agenda’, in H. Döring (ed.), Parliaments and Majority Rule in Western Europe (New York: St Martin’s Press), p. 233. J. D. Huber (1992) ‘Restrictive legislative procedures in France and the United States’, American Political Science Review, 86, 3: 676. P. Norton (1990) ‘Introduction: Parliament since 1960’, in M. Franklin and P. Norton (eds), Parliamentary Questions (Oxford: Clarendon Press), p. 2. M. Wiberg (1994) ‘To keep the government on its toes: behavioural trends in parliamentary questioning in Finland 1945–1990’, in M. Wiberg (ed.), Parliamentary Control in the Nordic Countries (Jyväskylä, Finland: Gummerus Printing), p. 188. For more on this see T. Bergman, W. C. Müller, K. Strøm and M. Blomgren (2003) ‘Democratic delegation and accountability: cross-national patterns’, in K. Strøm, W. C. Müller and T. Bergman (eds), Delegation and Accountability in Parliamentary Democracies (Oxford: Oxford University Press), pp. 109–220. J. D. Lees and M. Shaw (eds) (1979) Committees in Legislatures: A Comparative Analysis (Durham, NC: Duke University Press); I. Mattson and K. Strøm (1995) ‘Parliamentary committees’, in H. Döring (ed.), Parliaments and Majority Rule in Western Europe (New York: St Martin’s Press), pp. 249–307; L. D. Longley and A. Ágh (eds) (1997) The Changing Roles of Parliamentary Committees (Lawrence University, Research Committee of Legislative Specialists. Working Papers II); L. D. Longley and R. H. Davidson (eds) (1998) The New Roles of Parliamentary Committees (London: Frank Cass), pp. 3–13. M. Mezey (1979) Comparative Legislatures (Durham, NC: Duke University Press), p. 64.

Accountability through national parliaments

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36 K. Strøm (1998) ‘Parliamentary committees in European democracies’, in L. D. Longley and R. H. Davidson (eds), The New Roles of Parliamentary Committees (London: Frank Cass), pp. 21–59. 37 Adapted from M. MacCarthaigh (2005) Accountability in Irish Parliamentary Politics (Dublin: IPA), p. 154 38 J. E. Lane and S. Ersson (1998) Politics and Society in Western Europe (London: Sage), p. 209. 39 K. Strøm (1990) Minority Government and Majority Rule (Cambridge: Cambridge University Press). 40 E. Damgaard and I. Mattson (2004) ‘Conflict and consensus in committees’, in H. Döring and M. Hallerberg, Patterns of Parliamentary Behaviour (Aldershot: Ashgate), pp. 113–39. 41 C. Pollitt and G. Bouckaert (2004) Public Management Reform: A Comparative Analysis, 2nd edn (Oxford: Oxford University Press), pp. 6–7. 42 R. Mulgan, op. cit., note 1, p. 155. 43 C. Pollitt and G. Bouckaert, op. cit., note 41, p. 157. 44 For more on this see C. Pollitt and C. Talbot (eds) (2004) Unbundled Government: A Critical Analysis of the Global Trend to Agencies, Quangos and Contractualization (London: Routledge). 45 B. Hogwood, D. Judge and M. McVicar (2000) ‘Agencies and accountability’, in R. Rhodes (ed.), Transforming British Government, vol. I: Changing Institutions (Basingstoke: Macmillan). 46 M. Flinders (2006) ‘Public/private: the boundaries of the state’, in C. Hay, M. Lister and D. Marsh (eds), The State: Theories and Issues (Basingstoke: Palgrave Macmillan), p. 237. 47 R. Mulgan, op. cit., note 1, p.169. 48 See D. Della Porta (2001) ‘A judges’ revolution? Political corruption and the judiciary in Italy’, European Journal of Political Research, 39, 1: 1–21; M. MacCarthaigh (2005) Accountability in Irish Parliamentary Politics (IPA: Dublin); B. Winetrobe (1997) ‘Inquiries after Scott: the return of the tribunal of inquiry’, Public Law (spring): 18–31. 49 P. Mair (2005) Democracy Beyond Parties, Paper 05/06 (University of California, Irvine: Center for the Study of Democracy). 50 B. G. Peters and J. Pierre (2006) ‘Governance, government and the state’, in C. Hay, M. Lister and D. Marsh (eds), The State: Theories and Issues (Basingstoke: Palgrave Macmillan), p. 216.

3

Interparliamentary cooperation within Europe Christina Bengtson

In recent years national parliaments have gained an ever-greater prominence in the discussion of Europe’s future. National-level support for decisions made in the Council is necessary for these decisions to be legitimate.1 The lack of national-level support contributes to the ‘double democratic deficit’2 and has supported the notion that the democratic deficit cannot be eradicated by parliamentarization at the European level alone. It has become recognized that national level actors, especially national parliaments, must become involved in European matters – at both the national and European levels. The Maastricht Treaty therefore (in attached Declarations 13 and 14) ‘encourages greater involvement of national parliaments in the activities of the European Union’ and provides for the possibility of holding Assizes.3 Furthermore, the Nice Treaty, in its outline of what the 2003 IGC would consider, specifically mentions the role of national parliaments, as did the 2001 Laeken Declaration. While only one Assize has ever been held, it can be argued that the role it was intended to fulfil has instead been borne out through the participation of national parliamentarians in the Convention on the Future of Europe. Recent developments would seem to support Philip Norton’s outline of national parliamentary involvement at the European level, the third stage of which is currently taking place.4 This stage sees national parliaments as integral to addressing the democratic deficit.5 However, simply because there is agreement on the fact that national parliaments are important to European democracy does not equate to agreement on the most appropriate way(s) for national parliaments to contribute to the development of Europe. Table 3.1 is adapted from a submission Norton made to the House of Lords Select Committee on the European Union,6 outlining the main options that have been or are being discussed by national parliaments. In theory, the main options for national parliaments are thus to act individually or collectively, in either an advisory or formal capacity. However, in reality, not all of these options are open to all parliaments and indeed may not be suitable. Using the above table as a starting-point, this chapter investigates the collective options for national parliaments that have been explored by national parliamentarians in the past or are currently under consideration. This includes the Assize (which was held in 1990 and has never been repeated),

Interparliamentary cooperation within Europe 47 Table 3.1 Involvement by national parliaments in European affairs.

Individually

Collectively

Advisory

Formal powers

Better supply of information

Mandating ministers

Scrutiny committees

Scrutiny reserve

Offices in Brussels

Nominating members of Commission

Greater role of Assizes

Powers for Assizes

Greater role of COSAC

Powers for COSAC

Conference of Speakers

Second chamber

Consultation process

Joint Committees with EP

the Conference of Speakers of European Parliaments, and the Conventions, although the main focus of the chapter will be on the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC).

The Assize The Assize was originally proposed by the then French President Francois Mitterrand, who argued that national parliaments should become more involved in the development of Europe and its governing institutions. Held over the last four days of November 1990 and hosted by the Italian Camera dei Deputati, the Assize had as its theme ‘the future of the Community; the implications, for the Community and the Member States, of the proposals concerning Economic and Monetary Union and Political Union and, more particularly, the role of the national parliaments and of the European Parliament’.7 Formally the title of the Assize was ‘Conference of the Parliaments of the European Community,’ with the actual convening of the conference left ambiguous. The ambiguity was wholly intentional, with most parliaments believing the conference to be ‘“selfconvened” by all the parliaments collectively’.8 Details for the event were discussed at COSAC, although the majority of preparations were carried out by Presidents of the participating parliaments.9 Mitterrand’s proposal to discuss the Community’s future, based on his interest in involving national parliaments in the development of the Community and its institutions, initially met with scepticism on the part of the European Parliament (EP). However, the EP soon realized that ‘if it wished to lessen any “threat” from national parliaments, it would be best advised to take in its charge the organization of the Assises’.10 It thus proceeded to shape the conference in a fashion suitable to its own agenda, seeing it as ‘a joint parliamentary preparation for the IGCs [resulting in the TEU]’.11

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Delegates to the conference were members of national parliaments (173) and the EP (85). At the outset of the conference, delegations from each parliament were seated together, the EP’s delegation sitting in the centre of the chamber with its delegates grouped according to political affiliation. However, in the first session of the Assize, a vote was passed for all delegates to sit according to political affiliation, a move some delegates found contrary to their interests as national representatives and an attempt by the EP to ‘hijack’ the event. While the EP successfully produced a forum where its ways of conducting business were dominant, national delegations (especially the British and French) were ‘less enamored with the experience and the outcome of the Assises’.12 This feeling may have been furthered by the fact that the political groupings held meetings around the sittings of the Assize where facilities were provided by the secretariats of the political groups in the EP. Furthermore, ‘the core of MEPs within each grouping, having the best international contacts and, frequently, the best linguistic skills, were often among the key actors in such meetings’.13 Each of the participating parliaments (but not all chambers) delivered written submissions, with the EP’s submission being its proposed amendments to the TEU. The final declaration, although adopted by a majority of the delegates (150 to 13), was remarkably similar to the EP’s submission, ‘echoing all of the European Parliament’s main proposals for treaty revision’.14 Provisions for further Assizes were written into the TEU, but the experiment has never been repeated. Although not all participants were satisfied with the Assize, it at least brought an understanding that interparliamentary relations could be useful and would have to be developed further if parliaments were to participate actively in the shaping of European integration. It was also realized, however, that the Assize might not be the best forum for such cooperation. One chamber, the British House of Commons, declared its preference for ‘a series of bilateral contacts between the European Parliament and each national parliament and the further development of national parliaments’ pre-legislative role’.15 This illustrates how national parliaments still considered European affairs as foreign policy and therefore not a matter for parliaments as institutions. National parliamentarians did not appear at this stage to be prepared to engage in European matters on a party-political basis, preferring instead an institutions-based approach. The preference for national and institutional representation was satisfied via COSAC, another forum for interparliamentary cooperation, which had already begun to operate and permitted national parliaments to regain the initiative in interparliamentary cooperation.

COSAC The Conference of Community and European Affairs Committees of Parliaments of the European Union (usually known by its French acronym COSAC), is a biannual event that, since 1989, has been hosted by the parliament whose country holds the EU presidency. Delegations from national parliaments consist of members of parliamentary committees dealing with EU issues together with

Interparliamentary cooperation within Europe 49 civil servants responsible for EU affairs. The EP delegation usually includes at least one of the two vice-presidents responsible for relations with national parliaments. Although a wide range of issues is discussed, COSAC’s main aim remains as stated in the 1996 Dublin conclusion: ‘National Parliaments have their own role to play [within the European Union] to strengthen democracy and improve the efficiency of the Union. COSAC, through its work, will give a high priority to the pursuit of these aims.’16 The move to write COSAC into the Amsterdam Treaty in 1999 was seen as strengthening national parliaments whose role in and contribution to the Union would become better recognized. The task of COSAC is two-fold, with representatives from participating parliaments having agreed to (a) intensify the exchange of information; and (b) meet twice a year to discuss issues of common concern.17 Over time, the agenda of COSAC meetings has developed to focus mainly on institutional questions and matters relating to particular policy areas. However, as COSAC has traditionally been perceived as a forum for the exchange of information, no binding decisions are taken. Concluding ‘contributions’ are addressed to the EU institutions, but ‘shall in no way bind national parliaments or prejudge their positions’.18 In a process that began at the Lisbon COSAC meeting in May 2000, the conference has refocused its attention on the role of national parliaments in the European context. The Lisbon debate on interparliamentary cooperation was relatively short, consisting mainly of the Portuguese rapporteur presenting results from a questionnaire circulated to national parliaments and the EP prior to the Conference. In the results MEPs predictably confirmed that their links with national level politics were stronger through their political parties than through institutional contacts such as parliamentary committees undertaking scrutiny of EU legislation. The fact that national political parties elect candidates for the EP was revealed as an important factor in interparliamentary relations, with party links one of the most important means of contact between the two levels of parliament.19 In the report, the rapporteur also reiterated that national parliaments are vital to the European integration process, and the possibility of COSAC emerging as the embryo of a new European parliamentary chamber was (again) aired. The important issue of relations between national parliaments and the EP was thus raised. COSAC meetings have aided this relationship by serving as a formal forum where members of national parliaments (MPs) and MEPs – who have a complex relationship which at times has been more acrimonious than cooperative – can meet to discuss their different contributions to the European integration process. Both MPs and MEPs consider the meeting of the two levels important. While MPs mainly emphasize what they can learn from other national parliaments, MEPs tend to place more importance on the mutual benefits of networking, learning about respective as well as mutual concerns, and working collectively as parliaments, not as opponents from different levels of governance. COSAC has been described as a good opportunity for sharing of information, although its inability to take binding decisions and its only recently revoked requirement

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for unanimity have also attracted a certain amount of ridicule, with some MEPs and MPs describing it as a ‘talking shop’ of little consequence. Parliamentarians differ somewhat with regard to how they envisage COSAC’s future development. MEPs see the exchange of information as an appropriate function for COSAC, with no need for further decision-making bodies at the European level,20 whereas many MPs would like to see COSAC develop and strengthen further. Italian politicians and civil servants have thus floated the idea of developing COSAC into an institution within which national parliamentarians meet to ensure the principle of subsidiarity is upheld in European legislation.21 Danish MPs have also discussed this idea, but have been more supportive of the development of new, specialized, COSACs, each with a remit roughly corresponding to that of select committees within national parliaments.22 Specialized COSAC meetings were seen as having the potential to inform national parliamentarians not involved in European committees about European-level activities within their policy area, while also permitting debates on how other parliaments are handling scrutiny of these issues. The overall effect might be a reduction of the perceived difference between European and domestic legislation and, consequently, an improvement in national-level scrutiny. The concept of COSAC as a second – or, as some see it, a third – European chamber has also been discussed at COSAC meetings.23 Debate on transforming COSAC into a legislative chamber was a significant feature of discussion on the role of national parliaments in European affairs that continued at the October 2000 Versailles COSAC. Again, the debate was based on a questionnaire circulated before the conference. In the main, delegates were opposed to the idea of developing COSAC into a second chamber, citing issues such as increased complexity in decision-making procedures and operational issues (one argument was that delegates to such a chamber would primarily be concerned with domestic issues, especially at times of national elections which do not all occur at the same time). It was also pointed out that a second chamber was not necessarily the best method for achieving increased contact between national parliaments. Instead, the challenge was to ‘reach a better interconnection between the European Parliament and the national parliaments in order to make European construction more democratic’. Furthermore, it was argued that national parliaments ‘must express the aspirations and concerns of peoples. For that purpose, and to help European citizens to better understand what is at stake, it is essential that [national parliaments] have easier access to the decisions that are taken.’24 The final text adopted by the Versailles COSAC contained two elements specifically relating to national parliaments in the European arena: first, it mentioned the ‘useful’ procedure used in negotiating the Charter of Fundamental Rights and, second, outlined three issues for inclusion in the IGC then under way.25 However, the final contribution also recalled that ‘no provision of this protocol can jeopardize the competences and prerogatives of each national Parliament as provided by its national constitutional arrangements’,26 thereby limiting its potential impact. By the time of the Versailles COSAC meeting, the role of national parliaments

Interparliamentary cooperation within Europe 51 was not just a matter for interparliamentary discussion, but had become an important component of the European agenda. The COSAC meeting held in Copenhagen in October 2002 reflected this development, being devoted solely to discussion on the role of national parliaments. At this meeting a multi-pronged reform program for COSAC was begun.27 The reform program included a move away from unanimity when adopting the final contribution of COSAC meetings and the establishment of a common secretariat for COSAC, while also mooting closer cooperation with EU institutions. A working group was established to further consider eight issues of significance to COSAC:28 1 2 3 4 5 6 7 8

a code of conduct; new voting rules; establishment of a secretariat; further interparliamentary cooperation and networking; COSAC’s work on subsidiarity and proportionality; a new name; cooperation between various bodies at the European and national levels; and cooperation between the EU’s institutions.

Although COSAC for a long time had the option of setting up working groups, they have only been used infrequently. It was thus significant in itself that a working group was trusted with the examination of the issues detailed above. At previous COSAC meetings concerns had been voiced about the establishment of working groups, mainly expressing fears that such a move would institutionalize COSAC in an undesirable manner. At the Copenhagen meeting, such fears had largely been replaced by a feeling that to take interparliamentary cooperation further, the establishment of a secretariat and sectoral COSACs might be necessary. Furthermore, it was thought that initial discussions on how to develop COSAC were best undertaken in a smaller working group, rather than in the full plenary of a COSAC meeting.29 COSAC is one of the few collective forums where national parliamentarians can discuss their own role in the European integration process. However, as it cannot make any firm and binding recommendations to anybody, COSAC is still hampered in its effectiveness. The most significant outcome of COSAC conferences may therefore be an increased understanding of the work members of different national parliaments perform on European matters, as well as of problems common to them all. Such understanding is, however, as much a result of informal discussions and contacts as conference debates. While the above developments may seem small and relatively insignificant, the establishment of a secretariat still represents a substantial deepening of cooperation between national parliaments. Moreover, the development of desirable minimum standards for relations between parliaments and governments has shown that collective activities can affect events at the national level. Over a prolonged period, COSAC has thus prompted parliamentarians from national parliaments to consider procedures regulating their own involvement in European affairs. The involvement in COSAC has, however, been limited to politicians directly

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involved with European committees. Consequently, the potential benefits of COSAC cooperation are only apparent to a limited number of actors at, especially, the national level, while the false, and increasingly impossible, separation of European and domestic affairs has also been reinforced. Although members of standing committees other than European committees do conduct meetings at the European level, such contacts have not been institutionalized to the same extent as have those of European committees through COSAC. This problem has been recognized by COSAC delegates, and ‘task d’ of the Copenhagen working group therefore included an examination of how sectoral select committees might develop meetings similar to COSAC meetings. The report from the working group highlights that meetings between select committees already take place, but that it would be ‘possible to achieve even better results and form a more general view of the efforts of the parliaments if this cooperation were coordinated with the work in COSAC. COSAC could support such a development by making itself available as a supporting structure for the sectoral standing committees of the parliaments.’30 While members of select committees have been reluctant to include the European dimension in their work (and the increased workload this would bring), European committees in national parliaments are slowly accepting that, to scrutinize European legislation properly, they need the cooperation of other select committees in their parliaments. However, there are also country- and sector-specific differences. The areas most influenced by European cooperation, such as agriculture or environmental affairs, are thus the areas that show the most activity with regard to cooperation and meetings at the European level. David Curry, chair of the Environment, Food and Rural Affairs Committee in the House of Commons (2001–3), thus indicated that it would be useful to him if the chair and deputy chair of committees with a similar remit met to discuss topics of mutual concern. He also, however, emphasized that the number of participants would have to be limited and discussion kept to general issues, with no binding decisions to be taken.31 Politicians involved in areas less directly influenced by decisions taken at the European level, such as social matters, see less of a need for contact with other committees working with a similar remit. Members of these committees also express more concerns about the time such activities will require and the need to avoid further institutions at the European level. This opinion was, for instance, expressed by Tove Videbæk (chair of the Social Affairs Committee in the Danish Folketing, 2001–5), who believed one annual meeting at the European level to be more than sufficient for discussing affairs covered by her committee’s remit. Videbæk was also concerned that European-level activities would take up too much time compared to domestic work.32 Although national parliamentarians accept that interparliamentary cooperation may be of benefit to their work at the national level, their comments also reveal that the distinction between national and European affairs remains strong. Participants at current COSAC meetings may have benefited in their own work from the COSAC meetings and therefore are able to see the potential benefits in sectoral

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53

COSAC-like meetings. However, they may also find it difficult to persuade their colleagues in national parliaments to undertake the work required in making such meetings work. It is possible that COSAC may be assisted in its efforts by events within the EU. The continued focus on democracy and accountability can only add strength to its call for further cooperation and exchange of information. Institutionally, the COSAC secretariat and the development of information technology resources specifically aimed at the exchange of information are evidence of this. With the latest enlargement budgetary issues have also become more prominent, potentially creating a situation where cooperation on or exchange of information about scrutiny of the EU budget may take place. Such scrutiny may, however, be difficult for EU scrutiny committees to undertake on their own, requiring the involvement of specialized select committees. As the EU’s agenda increasingly becomes subject to debates in national parliaments, COSAC’s role has the potential to similarly expand. One area where COSAC has been active in recent years is the Convention convened to draw up the Charter of Fundamental Rights and the Convention on the Future of Europe. COSAC consistently supported the work of both the Conventions, as well as the way in which national parliamentarians were involved. Conclusions from various COSAC meetings are evidence of this, with the Rome meeting in 2003 being no exception. In this conclusion the first point states that COSAC ‘[w]elcomes the results of the Convention and recognizes the historical importance of the Convention as a method enabling parliaments to contribute to the definition of the draft treaty establishing a Constitution for Europe before approval by the IGC and ratification by National Parliaments.’ It goes on to state that the text produced by the Convention ‘represents a fundamental step forward for the European construction and should be the basis for the IGC conclusions’, but also calls for ‘a closer coordination between parliaments in the European debate’.33 While COSAC thus sees a role for itself within the European architecture, it also recognizes that national parliaments must continue to work individually at the national level, as well as in other forums such as the Conventions, which will be examined in the next section.

The Conventions Apart from the Assize, the first opportunity for members of national parliaments to participate directly in decision-making procedures at the European level was at the Convention convened to draw up the Charter of Fundamental Rights of the European Union.34 Although this Charter was not initially granted legal status, it quickly became an important document in European legal practice, with the ECJ referring to it repeatedly in its first years of existence.35 At the time of the first Convention, the involvement of MPs at the European level was very much an experiment. The Charter was not expected to be granted legal status and the participation of national parliamentarians thus did not intervene in intergovernmental work. It was still, however, the first time that parliaments, including the EP, were directly involved in a process to draw up a text

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which could, conceivably, end up as part of the EU treaties. While it was becoming increasingly difficult for European governments to exclude the EP from matters of significant importance, a Danish official claimed that many questioned the fact that national parliaments were included.36 According to this source, some argued that national parliaments were represented by national governments and thus did not need to be directly represented. However, the same source also pointed out that national parliaments are often more used to criticizing than to proactive and positive engagement. The Convention was therefore a chance for national parliaments to become both directly involved and also, ultimately, co-responsible for the outcome. The Convention on the Future of Europe also involved national parliamentarians, giving them co-ownership of the final result. However, at the IGC following the second Convention (described as a ‘second round’, see below) no parliamentarians, from either the national or European level, were present. Instead, government representatives, behind closed doors, renegotiated the openly agreed document, which the Convention delivered, causing scepticism to develop about the sincerity with which they supported the openness of the Convention method. Such impressions were not helped when Giuliano Amato, vice-chairman of the Convention, stated that ‘I told myself that they [national governments] are only this positive because they know there is a second round [an IGC], they’re not convinced supporters,’ while Iñigo Méndez de Vigo, the EP’s observer at the 2003 IGC fumed that ‘they [national governments] are going to destroy our work’.37 Government representatives might not have reopened the majority of articles in the Convention text, but the relative importance of the topics renegotiated during the IGC left little doubt as to who the final decision-takers were.38 The situation at the Convention on the Future of Europe was significantly different from the first Convention. Because the second Convention ‘only’ delivered recommendations to the IGC following the Convention, MPs were still not active in an area previously the domain of national governments – but they were actively involved in deliberating on and making proposals for the future direction of the European integration process. Because of the potential impact of the second Convention, it was perhaps even more important for national parliaments to be represented here than at the first. Not only had they become an important part of the European agenda, they were also beginning to realize that, as pointed out by the Danish government representative, the relationships and divisions of power between institutions can rarely be read directly from the text of a treaty. Instead, they develop over time (a good example of this is the development of the EP’s powers), making it important for national parliaments to be part of this process.39 By participating in both Conventions, but perhaps especially the second, national parliamentarians achieved a significant step in this direction. Being able to influence the draft treaty directly, and having to ratify the final outcome of the 2003 IGC, gave MPs the opportunity to assemble an overview (institutionally at least) of the process, something they have often found difficult to achieve with previous treaty negotiations.

Interparliamentary cooperation within Europe 55 At the second Convention, national parliamentarians again made up a plurality of the participants,40 although this time they were also part of the agenda, with Working Group IV (chaired by British MP Gisela Stuart) dealing specifically with the role of national parliaments. Other working groups dealing with the topic of national parliaments were Working Group I (examining the application of the principle of subsidiarity) and Working Group X (on freedom, security and justice).41 Working Group I in particular had overlapping issues with Working Group IV, to the extent that they held a joint meeting discussing these. Moreover, their contributions to the final draft treaty (protocols on the application of the principles of subsidiarity and proportionality, and on the role of national parliaments in the European Union respectively) were also examined together in the plenary session taking place on 17 and 18 March 2003 in order to give delegates a better overview of the issues, as they were so closely related.42 In the mandate set out for Working Group IV by its chair, three areas were identified for the group’s attention:43 1

2

3

the consideration of existing scrutiny and consultation mechanisms of national parliaments at national level, with a view to drawing attention to those systems which work best; examination of those aspects of legislative procedures and working practices at European level which may create difficulties for national parliaments attempting to carry out effective scrutiny of their governments’ activities; reflection on the role we believe national parliaments could/should play [and] identification and evaluation of the different means by which we enable parliaments to fulfil this role in the future by examining the proposals made by Convention members and others for formal and/or informal involvement of national parliament at European level.

Although the group took evidence on the performance of scrutiny systems within several of the member states, the evaluation of these systems was not a significant element of the final report.44 However, information gained through submissions on national-level scrutiny systems gave rise to the highest number of recommendations (10 from a total of 19, spread over four sections). Despite the list of recommendations, it is still stated in the final report that ‘it would not be appropriate to prescribe at European level how the scrutiny should be organized’.45 This statement reflects a general unwillingness on behalf of MPs to be tied by decisions (when these relate to their own activities) taken at the European level. The importance attached to being independent actors at the national level was similar to that expressed at COSAC meetings, reaffirming national parliaments as both national and independent actors. During the Convention on fundamental rights it was claimed that the behaviour of MPs fell into three categories: they either showed no interest in the work of the Convention, were shielded behind their government representatives whom they believed to represent their views anyway, or spent so much time talking at meetings that everybody became fed up with them.46 While it has been suggested that

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parliamentary and government representatives from the same countries often followed the same line of argument in the second Convention too,47 MPs still distinguished themselves from other representatives by having regular meetings on their own, while also meeting with the Presidium as a separate group. Indeed, Peter Norman claims that the political ‘families’ were used ‘as a conduit for transferring know-how and back-up resources from the well organized and well endowed European parliamentarians to their like-minded but less well resourced colleagues from the national capitals’ and that ‘Giscard’s consensus was based on a coalition of parliamentarians’.48 However, interparliamentary cooperation at the European level is still considered to be useful and COSAC was mentioned in Working Group IV’s final report as a vehicle for further exchange of information and experience. The possibility of expanding COSAC’s role to sectoral select committees from national parliaments was also mentioned, but the Working Group stopped short of recommending that COSAC be developed into a forum where national parliamentarians could scrutinize European legislation or apply the principle of subsidiarity. Indeed, Working Group IV ‘found it difficult to see how the creation of any new institution could assist the process of simplification [of decision-making and institutional structures at the European level]’.49 National parliaments are mentioned several times in the draft treaty, but are discussed most directly in the protocols on the principles of subsidiarity and proportionality and the role of national parliaments. In the protocol on subsidiarity and proportionality, national parliaments are given the right to submit reasoned opinions on whether a piece of legislation complies with these principles. In cases where the Commission has to review its position, it must provide the reasoning behind maintaining, amending or withdrawing its proposal. However, even if the Constitutional Treaty becomes ratified, national parliaments will still not be permitted direct access to the ECJ to test whether a piece of legislation conforms with the principle of subsidiarity. Article 7 of the protocol on subsidiarity and proportionality gives member states the right to do this, in accordance with rules in Article III-270, or as ‘notified by them in accordance with their legal order on behalf of their national Parliament or a chamber of it’.50 National rules thus determine whether a member state, in effect the executive, is able to take a case to the ECJ and parliaments still operate individually at the national level. While national parliaments can coordinate activities in an effort to obtain enough votes to force the Commission to review its position (see Article 6 of the protocol for the exact rules), there is still no direct or collective way for MPs to express their concerns at the European level. The emphasis on national parliaments as individual actors is also evident in the protocol on the role of national parliaments in the European Union where it is stated that ‘the way in which individual national Parliaments scrutinize their own governments in relation to the activities of the Union is a matter for the particular constitutional organization and practice of each Member State’.51 The protocol outlines how national parliaments are to receive legislative proposals and other information directly from European institutions, while also setting down a period

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of six weeks between a legislative proposal being made available and the date when it is placed on the Council agenda. However, national parliaments are already able to find this information on the internet and are increasingly aware that it is often too late for them to alter anything meaningful in the text at the post-initiative stage. Furthermore, many MPs point out that the most useful information is not necessarily the legislative text itself, but the accompanying explanatory notes from the national executives. For parliamentarians to have a meaningful influence on European legislation they must involve themselves in the pre-initiative stage. To date, most parliaments have been reluctant to involve themselves at this early stage as their primary role has been to scrutinize their governments’ behaviour at the European level, not involvement in the drafting of European legislation. Ideas on what constitutes appropriate involvement at the European level for national parliaments may thus have to develop beyond mere scrutiny of executive activities if national parliaments are to legitimize European legislation in a meaningful way. While the draft treaty has significantly improved the visibility of national parliaments in the European political arena, it can also be argued that by denying them a direct voice at the European level, and by refusing to lay down rules or minimum requirements for procedures at the national level, the draft treaty has done little to clarify the position and role of national parliaments within the European Union. There is nothing new in the fact that national parliaments should operate, and do operate most efficiently, at the national level. Indeed, this is what most national parliamentarians have themselves been saying for several years. Because of the emphasis on activity at the national level it would be improper for the European level to impose rules or standards on national parliaments. Although this too is a well recognized fact, it does leave national parliaments with the problem of how, individually, to place their mark on European legislation through their governments. Because MPs see themselves as national operators, many have been opposed to the idea of a second parliamentary chamber at the European level, although such an institution has been proposed as a possible solution to the dilemma of national parliaments not being effective at the European level.

Other initiatives A second chamber Perhaps the first important European politician to mention a second parliamentary chamber was the UK Conservative minister Michael Heseltine.52 Heseltine’s justification for a second parliament at the European level was two-fold. First, he perceived a need for reconciling national and European interests and, second, he saw it as a democratic way of doing so. He took the American Senate and German Bundesrat as models on which the second parliament could be based, asserting that ‘[t]he direct involvement of national parliaments in the democratizing of the

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community can be effected by creating an upper House of the European Parliament from within the membership of our national parliaments’.53 More recently, the idea of a second parliament has been floated repeatedly by heads of state or government. The aim of a second chamber would be to bring Europe closer to European citizens, and improve the legitimacy of decisions taken at the European level. A second chamber was thus mentioned both by Joschka Fischer in his expansive and much publicized speech at the Humboldt University, on 12 May 2000,54 while British Prime Minister Tony Blair also spoke of a second chamber in a speech to the Polish Stock Exchange in October 2000. In his speech Fischer stated that ‘nation-states are realities that cannot simply be erased, and the more globalization and Europeanization create superstructures and anonymous actors remote from the citizens, the more people will cling on to the nation-states that give them comfort and security’.55 Blair, too, acknowledges that ‘the primary sources of democratic accountability in Europe are the directly elected and representative institutions of the nations of Europe – national parliaments and governments’, and that ‘[w]e need to get the political foundations of the European Union right. The foundations are rooted in the democratic nation state.’56 While executives have tended to favour the notion of a second chamber, parliamentarians have been much more opposed to the idea. A second chamber has been discussed at COSAC meetings, the Speakers’ Conference (see below) and the second Convention. The Spanish chair of the 2002 Speaker’s Conference, in the summary issued after the conference, stated that ‘[i]n spite of the fact that some of the Presidents do not totally reject the possibility of a second Chamber in the European Parliament, most of the participants prefer to avoid complicating the European Union institutional structure’.57 One significant objection is that a further institution at the European level will cause more confusion and complicate decision-taking procedures more than it will contribute legitimacy. Moreover, if national parliamentarians working in a second chamber find that EU legislation does not, for instance, comply with the principle of subsidiarity, it is difficult to determine what, if anything, they could do about it. If the second chamber is given recourse to the ECJ, then legally binding documents would have to be the basis for the work of the chamber, something to which most proponents of the idea seem opposed. Moreover, appeals to the ECJ would impact significantly on the legislative process, making it both more cumbersome as well as significantly less transparent. Citizen reaction would have to be gauged, especially in relation to whether it would improve their understanding of the Union, its legislative processes and actual legislation. On the whole the issue of a second parliamentary chamber at the European level raises more questions than it answers, and it is no great surprise that such an institution has not been introduced into the European decision-making process by the Convention. Conference of Speakers of the European parliaments The Conference of Speakers is perhaps the oldest vehicle for formalized contact

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between national parliaments, as they have held regular, annual meetings since 1975. According to Article 1 of the guidelines for the Conference, its members are speakers of the national parliaments in the EU member countries and the President of the European Parliament, who participate in meetings on an equal basis.58 As with COSAC, the Conference of Speakers is a forum for ‘exchange of opinions, information and experiences, as well as for the promotion of research activities and common action, among the Speakers, on topics related to the role of Parliaments and the organization of parliamentary functions, also with respect to the forms and tools of interparliamentary cooperation’.59 However, as the mandates of the speakers of the European parliaments vary, Article 1 also protects the ‘autonomy and constitutional position of each participating Speaker’. To ensure that this principle is not violated, no formal conclusions are issued from the meetings. Instead, the chair issues a ‘Chairman’s Summary’ based on the discussions held during the meeting. With the increased interest in the role of national parliaments in European decision-making, this topic has naturally also been discussed at Speakers’ Conferences, especially since 2000. Since then it has been repeatedly underlined that national parliaments are important in the European architecture, and that cooperation between them must be strengthened.60 Although the speakers see a purpose for their own meetings, a report prepared by Ivar Hansen (former speaker of the Danish Folketing) states that ‘[o]n the European scene, COSAC is the most important forum for cooperation between the national parliaments’.61 The benefits obtained from the Speakers’ Conference are similar to those of COSAC, although not all participants willingly set aside the time required for participation. A British MP with extensive experience of the Conference, speaking off the record, stated that ‘if it was up to us there wouldn’t be any meetings at all’, but also continued to say that ‘we just find it valuable from the point of view of personal contact’.62 The latter viewpoint is echoed by Ivar Hansen who experienced a ‘constant exchange of new ideas and a coordination between parliaments about certain aspects of parliamentary work’.63 He further felt that good contacts between parliamentary administrations contributed significantly to the exchange of experience and knowledge. Although no formal decisions are taken, the debates and personal relations no doubt contribute to discussions at the national level where speakers may be able to influence how their parliament addresses European issues. This is obviously more difficult in parliaments where the speaker’s role is separated from that of leader of the legislature, as in the UK, and in such cases the influence may be more limited, unless committees dealing with European affairs take a more direct interest in the work of the Speaker’s Conference. Other meetings and contacts According to Hansen’s report to the Speakers’ Conference, several standing committees from national parliaments already hold regular meetings. This includes committees on development and aid, defence and the environment.64 An

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official from the EP65 also mentioned round-table meetings, as well as meetings between select committees – in effect specialized COSACs. National parliamentarians admit to being invited to these meetings, but frequently, and usually off the record, state that the time required could be better spent at the national level. Although many parliamentarians believe that committee work benefits from contact with other parliaments, the reluctance to become involved in European affairs remains strong. Erling Olsen, former speaker of the Danish Folketing, believes that the limited participation by Danish parliamentarians in the first Convention can be explained by the fact that such work, conducted abroad in the main, goes unnoticed in the MP’s constituency. Thus, ‘if [an MP] is to use a lot of energy on foreign affairs, it demands a very solid foundation in their constituency’.66 This implies that even if MPs understand the importance of the European dimension, their voters often do not. MPs are therefore forced to consider the electoral impact when choosing where to utilize their resources – rather than merely what they consider to be important. The problem of parliamentarians’ reluctant participation in joint meetings is further compounded by practical issues as outlined by the EP official: because the EP has constant access to simultaneous translation this is most frequently where joint meetings are held, giving the impression that the EP is ‘pushy’.67 Memories of the Assize easily come to mind, and MPs’ feelings of limited influence on procedures and the organization of meetings may thus actually prevent them from taking place.

Conclusion When considering the development of national parliaments’ collective activities, a clear progressive development over time is evident. Interparliamentary cooperation has evolved gradually, with national parliaments increasingly taking charge of and pushing cooperation in directions they consider most useful. The Assize, whose organization as well as final output was strongly guided by the EP, is a good example of interparliamentary cooperation that has little to offer national parliaments. Although relations between the EP and national parliaments are improving, national parliaments are still in the process of discovering their potential when it comes to engagement in European policy. On the other hand, European legislation is the sole focus for the EP, leaving national parliaments with agendas (including institutional) that differ significantly from that of the EP. To develop interparliamentary cooperation (which the Assize at least established could be useful) COSAC was established. In this forum national parliamentarians are more fully in control of the agenda and the institutional arrangements and although development of COSAC has been slow, it has now reached a point where a common secretariat has been established, with further specialized COSACs under discussion. For national parliaments to arrange and host several COSAC meetings would be a difficult undertaking, especially so with the requirement of simultaneous translation into all EU languages. Such practical issues may help overcome the aversion of MPs to conduct meetings in the EP. However, the first step is to persuade

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members of select committees that it is important they too examine European legislation. To achieve this, EU committees would have to surrender their monopoly on scrutiny of European legislation. Furthermore, it must become commonly accepted that European affairs are no longer foreign affairs, but that many areas of ‘domestic’ affairs are heavily influenced by what takes place at the European level. The work of COSAC, the Speakers’ Conference and the Conventions has contributed to the linking of the two levels within national parliaments, while also making it generally accepted that national parliaments have a role in the European decision-making process – even if this is indirectly through their executives. During the two Conventions, national parliaments were participants in the process of these events, while in the second Convention (on the Future of the Union) they were also part of the agenda. Working Group IV considered both scrutiny at the national level and European procedures that may impede scrutiny by national parliaments, while also reflecting on the role national parliaments could or should play within Europe. How precisely the involvement of national parliaments may develop remains uncertain and, although considered an important issue at the Convention, relatively little was done to clarify the situation. All interparliamentary cooperation emphasizes the fact that conclusions from meetings are non-binding on participants and that national parliaments remain independent and autonomous actors. The lack of binding collective decisions at the European level makes it unlikely that national parliaments will work in anything but an advisory capacity at this level. However, following the relative success of the second Convention and its preparatory work of the IGC, it seems inconceivable that national parliaments would be excluded from any future treaty (re)negotiations. National parliaments have thereby succeeded in carving out a distinct role for themselves at the European level, although treaties will likely be finalized at IGCs where parliamentary representatives have no direct role. Because national parliaments are independent actors unwilling to become bound by common decisions from a forum such as COSAC, it has been difficult to discuss specific policies at these gatherings. Not only do national parliaments hold different attitudes towards policy issues, they also, institutionally, address them in different manners. National differences and emphasis on independence led to, especially, COSAC being labelled a ‘talking shop,’ with participants debating topics such as ‘enlargement and employment’ or ‘the EU’s priorities in the area of freedom, security and justice, including the preparation of the EU Charter of Fundamental Rights’. While these issues are of obvious importance to nationallevel politicians, they are also too unwieldy for anything more than general debate. However, as both the Speaker’s Conference and COSAC have undertaken work with a more institutional direction and discussed the role for national parliaments at the European level, the road for more specialized debates (if not necessarily legislative work) has been paved. While nobody disagrees that national parliaments must be involved with European affairs, the nature of this involvement remains an issue – especially activities at the European level. Scrutiny undertaken within national parliaments

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at the national level is purely a matter for parliaments themselves to determine, a situation that reflects their status as independent and autonomous institutions, while also allowing individual political cultures to influence the scrutiny procedures. While individual scrutiny activities can present problems for the individual parliaments, these are of a somewhat technical nature that can be overcome by the alteration of rules and structures within national parliaments. However, collective activities present problems of a different nature, mainly to do with the nature of national parliaments rather than that of the EU. Institutionally, national parliaments have a particular – national – focus, with national parliamentarians expected to defend and protect the interests of their – nationally based – constituents. Operating at the European level in anything but a non-binding manner would therefore be impossible, as the activities of national-level actors would be compromised by binding decisions at the European level, even if these were taken by unanimity. Moreover, in parliaments such as the British, no individual (or committee) can commit either of the Houses, let alone the entire Parliament, to a decision taken outside the British Parliament. National governments may negotiate on behalf of the member state at the European level, but parliamentarians legitimize these decisions by supporting them in the national parliaments. Nevertheless, procedures for scrutiny may develop as a result of discussions with other parliamentarians, and awareness that scrutiny of European legislation is an important task to be undertaken may also develop as a result of collective actions. The inter-relationship between the collective and individual levels is thus important, and better knowledge of this may contribute to an improved understanding of scrutiny at the national level. Currently, much more information is available about what is formally possible (such as the Rules of Procedure for COSAC or formal instructions on how European committees in national parliaments work) than about what actually takes place. This is the case for both collective and individual parliamentary activities, and begs several questions. For instance, why has COSAC developed the way it has? Why has a further Assize never been held? And how exactly has interparliamentary cooperation fed into the development of scrutiny procedures at the national level? More research is needed to fully understand interparliamentary cooperation – with the interplay between collective and individual actions being especially important.

Notes 1 For a discussion on international parliamentary cooperation in general see A.-M. Slaughter (2004) A New World Order (Princeton, NJ: Princeton University Press). 2 J. Lodge (1996) ‘The European Parliament’, in S. S. Andersen and K. A. Eliassen (eds) The European Union: How Democratic Is It? (London: Sage Publications), pp. 187–214. 3 The Assize was a conference where the participants were members from the EP and EU member state parliaments. 4 See P. Norton (1996) ‘Introduction: adapting to European integration’, in National Parliaments and the European Union (London: Frank Cass), pp. 1–11. 5 The first stage is (by Norton) characterized as having no parliamentary involvement – and no

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desire on behalf of national parliaments to be involved in European affairs – while the second stage sees adaptation and strengthening of parliamentary procedures to accommodate European affairs. Paradoxically the first stage coincides with the time where MEPs were seconded from national parliaments, whereas the second stage, in many cases prompted by the SEA, only begins to develop after this direct link has been broken. The stages of adaptation are explored in more detail in the introductory chapter of this volume. House of Lords Select Committee on the European Union (2001) A Second Parliamentary Chamber for Europe: An Unreal Solution to Some Real Problems (London: House of Lords). European Parliament (2000) European Parliament Fact Sheets 1.3.5 The European Parliament: relations with the national parliaments, online document, accessed 2 October 2003, www.europarl.eu.int/ factsheets/1_3_5_en.htm. R. Corbett (1998) The European Parliament’s Role in Closer EU Integration (Houndmills: Macmillan Press). R. Corbett (2002) The Conference of Parliaments held in Rome before the Maastricht IGC, Federal Union, online document, accessed 2 October 2003, www.federalunion.uklinux.net/europe/assizes.htm. Ibid. R. Corbett, The European Parliament’s Role in Closer EU Integration, p. 296. M. Westlake (1996) ‘The view from “Brussels”, in P. Norton (ed.), National Parliaments and the European Union (London: Frank Cass), pp. 167–76. R. Corbett (2002) The Conference of Parliaments held in Rome before the Maastricht IGC. R. Corbett, F. Jacobs and M. Shackleton (2000) The European Parliament, 4th edn (London: John Harper). Cited in Westlake. COSAC (2000), XV COSAC, Dublin, 15th–16th October 1996, online document, accessed 22 March 2001, www.cosac.org/eng/previous/dublin_1996/texts.html. European Parliament (2000) Conference of the Community and European Affairs Committees of the Parliaments of the European Union – COSAC: History, European Parliament website, accessed 1 May 2001, www.europarl.eu.int/natparl/cosac/history_en.htm. COSAC (2003), Rules of Procedure of the Conference of Community and European Affairs Committees of Parliaments of the European Union, online document, accessed 22 July 2003, www.cosac.org/eng/previous/ athens_2003/rules_engl.htm. The last paragraph of the conclusion from the Lisbon COSAC stated that ‘[i]n the absence of a public European domain, MEPs are elected from national parties, although they represent all the interests of European citizens. MEPs and national deputies are therefore not competitors, but rather partners, acting only at different levels of representation’: COSAC (2000) Conclusions of the Presidency (Lisbon 2000), COSAC website, accessed 2 June 2000, www.cosac.org/eng/previous/ portugal_2000/texts.html#conclusions. Personal interviews. Personal interviews. Personal interviews. Opponents of a second chamber often talk of it as a third chamber, arguing that the Council and the EP, in effect, make up two legislative chambers at the European level. The term ‘second chamber’ will, however, refer to a second chamber consisting of parliamentarians. Mr Antonio Nazaré-Pereira (Portugal), COSAC (2000) Analytical Report XXIIIrd COSAC, Versailles, 16–17 October 2000, online document, accessed 15 November 2000, www.cosac.org/eng/previous/ versailles_2000/report.pdf. The three issues covered early transmission of documents and proposals from the Commission to national parliaments; an increased period for consideration of issues to be applied under title V of the TEU; and a minimum period of time between final reading of a text by COREPER and the Council decision. COSAC (2000) Texts adopted by the XXIIIrd COSAC, Versailles; October 16th and 17th, 2000, COSAC website, accessed 15 January 2001, www.cosac.org/eng/next/textsadopted.html. COSAC (2002) XXVII COSAC, Copenhagen 16–18 October 2002. Contribution, online document, accessed 2 December 2002, www.cosac.org/eng/previous/copenhagen_2002/contribution.pdf.

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28 COSAC (2002), COSAC Working Group Copenhagen 15 to 16 December 2002, online document, accessed 17 February 2003, www.cosac.org/eng/previous/copenhagen_2002/wgdec.htm. 29 Author’s own notes from COSAC meetings. The results of the working group’s deliberations were discussed at the COSAC meeting held in Athens, May 2003. New rules of procedure were adopted allowing for contributions to be passed with a 75 per cent majority of votes cast (which must also constitute at least half of all votes, with each voting delegation having two votes) (COSAC 2003, Rules of Procedure of the Conference of Community and European Affairs Committees of Parliaments of the European Union). Furthermore, it was decided to establish a common Brussels-based secretariat before the end of 2003 (COSAC 2003, XXIX COSAC 4th–6th May 2003 in Athens. Guidelines for the Establishing of a Troika – COSAC Secretariat, online document, accessed 21 July 2003, www.cosac.org/eng/previous/athens_2003/secretariatguidelines.htm). A further element in the reform of COSAC was the publication of the ‘Copenhagen Parliamentary Guidelines’ in the Official Journal of the Union, C Series, on 2 July 2003. These guidelines were presented as entirely voluntary, but set out ‘instructive minimum standards’ for relations between governments and parliaments on Community issues (COSAC 2003, Copenhagen Parliamentary Guidelines: Guidelines for Relations between Governments and Parliaments on Community Issues (Instructive Minimum Standards), online document, accessed 21 July 2003, www.cosac.org/eng/basic/basetxt/code_eng.pdf). Included in the guidelines were desirable standards on the quantity and quality of information, the timing of information exchange and the opportunities for national parliaments to influence Community policy. Gisela Stuart (chair of Working Group 4 at the Convention on the Future of Europe), tabled an amendment to the Convention’s draft treaty, wanting to include the Copenhagen guidelines in the text. The issue had not been debated in the working group, and did not gain the necessary support. 30 COSAC (2002), Note on Interparliamentary Cooperation and Networking and the Organisation of COSAC and Future Meetings, online document, accessed 17 February 2003, www.cosac.org/eng/previous/ copenhagen_2002/decd.pdf. 31 Personal interview. 32 Personal interview. 33 COSAC (2003) Contribution XXXth Cosac, Tuesday, 7 October 2003, online document, accessed 11 October 2003, www.cosac.org/eng/next/index.html. 34 This Convention held its constituent meeting in December 1999 and adopted its draft text in October 2000. 35 A. J. Menéndez (2002) ‘Chartering Europe: legal status and policy implications of the Charter of Fundamental Rights of the European Union’, Journal of Common Market Studies, 40, 3: 471–90. 36 Personal interview. 37 O. B. Nielsen (2003) ‘EU-forfatning trævles op’, Berlingske Tidende. 38 On institutional matters the structure of the Council was a particular focus of debate, the thorniest issues being its formation, the rotation of the presidency, its size and how votes were weighted. There was much discussion about the post of Minister of Foreign Affairs, while contentious areas of policy were mainly those of defence and the finances and budget of the EU. 39 Personal interview. 40 The 102 members consisted of 15 representatives of heads of state or government from member states, 13 heads of state or government from applicant states, 30 representatives from parliaments in member states, 26 representatives from parliaments in applicant states, 16 representatives from the European Parliament and two representatives from the Commission. 41 For a more detailed description of how these two working groups dealt with the issue of national parliaments see Francesco Rizzuto (2003) The New Role of National Parliaments in the EU: No Longer Victims of Integration? The Federal Trust, online article, accessed 20 September 2003, www.fedtrust.co.uk/uploads/constitution/19_03.pdf. 42 European Convention Secretariat (2003) Summary Report on the Plenary Session. CONV 630/03, European Convention Secretariat, online document, accessed 24 September 2003, register.consilium.eu.int/pdf/en/03/cv00630en03.pdf. 43 European Convention Working Group IV (2002) Mandate of the Working Group on National Parli-

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aments, online document, accessed 27 July 2003, register.concilium.eu.int/pdf/en/02/cv00/ 00074en2.pdf. See European Convention Working Group IV (2002) Final report of Working Group IV on theRole of National Parliaments. CONV 353/02, European Convention Secretariat, online document, accessed 22 October 2002, register.consilium.eu.int/pdf/en/02/cv00353en2.pdf. Ibid. Personal interview. Personal interview. P. Norman (2003) ‘Evaluation and conclusions’, The Accidental Constitution (Brussels: EuroComment), pp. 319–39. European Convention Working Group IV (2002) Final report of Working Group IV on the Role of National Parliaments CONV 353/02. European Convention Secretariat (2003) Draft Treaty Establishing a Constitution for Europe, online document, accessed 31 July 2003, european-convention.eu.int./DraftTreaty.asp?lang=EN. Ibid. M. Heseltine (1989) The Challenge of Europe: Can Britain Win? (London: Weidenfeld and Nicolson). Ibid., p.35, emphasis in original. At the time German Foreign Minister, although on this occasion speaking in a personal capacity, and not as a representative of the German state or government. J. Fischer (2000) From Confederation to Federation: Thoughts on the Finality of European Integration (London: Federal Trust). T. Blair (2000) Speech by the Prime Minister, Tony Blair, to the Polish Stock Exchange: Warsaw, Friday 6 October, Foreign and Commonwealth Office website, accessed 11 April 2001, www.fco.gov.uk/ news/speechtext.asp?4913. Conference of Speakers of the European Parliaments (2002) Conference of the Presidents of EU Parliaments and the European Parliament: Chairman’s Summary, Camera dei Deputati, online document, accessed 22 July 2002, www.senato.it/att.affint/home.htm. Conference of Speakers of the European Parliaments (2001) Guidelines for the Conference of Presiding Officers, Sveriges Riksdag, online document, accessed 23 November 2002, www.riksdagen.se/ euspeakers/english/pdf/guidelines.pdf. Ibid. Conference of Speakers of the European Parliaments (2000) Conference of Speakers of the European Union Parliaments, Rome, 22–24 September 2000, Conclusions by the Chair, Camera dei Deputati, online document, accessed 23 November 2002, www.parlamento.it/sppueg/ing/lavori_documenti_ presiden.asp; Conference of Speakers of the European Parliaments (2001) Conference of Speakers of the EU Parliaments. Stockholm, 16–17 November 2001: Chairman’s Summary, Sveriges Riksdag, online document, accessed 23 November 2002, www.riksdagen.se/euspeakers/english/pdf/chairmans_ summary_eng.pdf; Conference of Speakers of the European Parliaments, Conference of the Presidents of EU Parliaments and the European Parliament. Chairman’s summary. I. Hansen (2002) National Parliaments in the European Institutional Framework, Folketinget, online document, accessed 23 November 2002, www.cosac.org/eng/previous/copenhagen_2002/ hansen.pdf. Personal interview. I. Hansen (2002) personal communication. Hansen, National Parliaments in the European Institutional Framework. Personal interview. Personal interview. Personal interview.

4

European scrutiny in national parliaments Individual efforts in the collective interest? Philipp Kiiver

Introduction To the parliaments of the EU member states, the establishment and strengthening of European decision-making institutions and mechanisms brings about, on balance, an enhanced marginalization. Of course, not all parliaments had equally much to lose in terms of legislative and scrutinizing power in the first place, and not all parliaments stood by idly as European integration progressed.1 However, European decisionmaking still allows the national governments to partake in the adoption of binding legislation away from the domestic arena, which puts national parliamentarians, provided they wish to have an impact or at least continued oversight over their governments, at a structural disadvantage.2 As various actors at both European and national level have come to realize, for various reasons, that national parliaments should be taken on board in the Constitutional Process, measures to improve the position of parliaments have been put forward. Typically, a distinction is made between addressing parliaments in their individual role on the domestic arena, on the one hand, and fostering a collective role of parliaments acting in concert, on the other hand.3 Under the individual heading, efforts would aim at enabling parliamentarians to better enforce ministerial responsibility for EU decision-making, and to ensure oversight over the national apparatus of civil servants. This approach is therefore premised on the idea that a cabinet is accountable to parliament, and that executive actors should not be able to escape their domestic accountability for what they say and do, or omit to say and do, when they represent their member state within EU decision-making processes. While tools to pursue that idea can be agreed at EU level (e.g. by inserting a parliament-friendly treaty provision), or implemented in the member states themselves (e.g. by adapting a national parliament’s own rules of procedure), the focus remains on the members of an individual parliament and their link to their very own national cabinet. Under the collective heading, meanwhile, the focus shifts from individual government–parliament relations towards identifying parliaments in Europe as a category of generic institutions. The approach is again premised on the idea that each member state features a minimum duality between government and parliament, so the two are neither identical nor equivalent to each other.

European scrutiny in national parliaments 67 Crucially, parliaments are then assigned tasks, roles, powers or privileges that have been agreed at EU level and that are meant for parliaments only. Parliamentarians from different member states can then actually coordinate their actions (e.g. adopt a common statement at an interparliamentary conference), or act on their own but use generic devices that are made available across the EU to national parliaments (e.g. object to an EU proposal as envisaged in the Constitutional Treaty). Either way, an assumption is maintained that national parliaments across Europe all have something in common, something that would justify addressing them as a collective in their own right. This chapter puts the conceptual distinction between individual and collective roles of national parliaments under critical scrutiny. The question is raised whether the distinction is actually justified, and whether it is helpful as a paradigm in guiding the Constitutional Process of the European Union. Contrasting, on the one hand, individual set-ups for parliamentary participation in the member states with, on the other, modern developments as regards a collective involvement of parliaments in the EU, the chapter explores the limitations of overly sharp distinctions between the two. Attention is also drawn to the merits of stressing either an individual or a collective role of national parliaments as one having priority over the other. For confining parliamentary activity to the respective member state only would mean to ignore the already existing complex interactions within the European polity. Preaching collective involvement as the way ahead, however, easily risks missing the essential importance of national parliaments, in that they are embedded in the constitutional and societal context of their own individual member state.

Individual scrutiny in the national parliaments The reason why proposals for direct collective involvement of national parliaments in the EU are put forward in the first place is the perceived inability of parliaments to fulfil their individual role satisfactorily. Individually, national parliamentarians can use domestic constitutional rules on parliamentary confidence and ministerial accountability, where and in as far as that applies, to maintain oversight and exercise control over governmental action. Governments are not only accountable for domestic policies but also for foreign affairs and international cooperation. That in turn allows for ex post assessment and ex ante steering of governmental performance in an EU context. In a parliamentary democracy, ministers can be summoned or invited to disclose information, to reveal bargaining plans for upcoming Council negotiations, and to render account of their own actions and the actions of others, such as civil servants, all under the threat of public embarrassment or, legally, a revocation of parliamentary confidence or a motion of censure. All this would fit with a perception of national parliaments playing an individual role in the EU: parliamentary confidence is no less applicable just because a policy measure happens to be European in nature, and ministers are no less accountable just because they happen to sit in the Council; they have to justify all that they have said and done while in Brussels. Accordingly, the individual link of parliamentary confidence, and ministerial accountability for

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national representation in the EU, would still be a parliamentarian’s main access point to EU decision-making. The use of parliamentary sanctions for unsatisfactory governmental performance in EU matters may of course be mostly theoretical in the light of political reality. After all, to apply the ultimate sanction, a majority of parliamentarians would have to prioritize EU matters to such an extent that a controversial EU policy step, or failure at national interest representation, would turn in to a genuine domestic confidence crisis. Nevertheless, national parliaments have gradually responded to the European challenge by adapting their institutions and procedures for parliamentary scrutiny over time. They strengthened their scrutiny mechanisms in particular in the period following the adoption of the Single European Act (SEA) and the Maastricht Treaty, and a relative increase in European scrutiny powers of the EU national parliaments in the course of European integration is observable.4 Even tendencies of convergence of national parliamentary treatment of European affairs appear.5 These observations should, however, not conceal the fact that differences between parliaments and chambers in their European activity are still considerable: if the role of parliaments is largely individual in character, this individuality also comes with considerable national variations.

Individual scrutiny and national variation Even within an individualized approach to national parliaments, cross-country comparisons as to how scrutiny is implemented in practice are crucial not only to explain individual structures but also to assess the basis for any collective role. The empirical assessment and scholarly categorization of parliamentary activity is of course highly problematic. It remains, for instance, difficult to measure the ‘strength’ or ‘impact’ of parliaments on governmental EU policy, let alone EU policy outcomes themselves. Intuitively, any instance where a parliament rejects a government’s strategy and imposes another one instead might count as a sign of parliamentary strength. However, it is not necessarily a weakness if the priorities of a normal majority cabinet and the parliamentary majority that supports it converge from the very outset. Conversely, ministers may avoid domestic legislative defeat not because they prevail over parliament but because they adapt to parliamentarians, anticipate their preferences, and thus avoid confrontation. The present chapter, it should be noted, is not itself empirical in nature. The purpose of this chapter is instead to explore whether individual and collective roles of national parliaments can be separated from each other, and whether either one deserves normative priority in the Constitutional Process. And it is for this purpose that an overview of national variation as regards individual scrutiny is useful as a factual foundation for the argument. To map out existing variations, I suggest a combination of five variables to approximate reality from different angles: 1

the moment in the EU decision-making process when parliaments become active, ex ante or ex post;

European scrutiny in national parliaments 69 2 3 4 5

the relative centralization, coordination or fragmentation of the internal committee system; the method of scrutiny, ranging between mandating routine and informal influence; the legal basis for parliamentary involvement, constitutional, statutory or otherwise; and the relative ‘strength’ of parliaments as regards their governments, as estimated by political scientists.6

As regards the distinction between ex ante activity and ex post accountability enforcement by national parliaments, it should be noted that the term ‘accountability’ by itself implies justification of policies in retrospect.7 On the other hand, domestic interaction with the government before EU decisions are adopted is crucial if parliamentarians, in particular opposition parties, wish to have a substantive impact on the individual domestic scene. Furthermore, ex post sanction will not undo decisions already taken, and anyway a ‘non-informed, non ex ante participating national parliament would be unlikely to dismiss its minister for matters of which it is ignorant’.8 The contrast between the ex ante and ex post approaches became clearly visible when the parliaments of the six founding member states of the Community, who in terms of European scrutiny were mostly considering annual government reports,9 were confronted with the example set by the parliaments of the United Kingdom and Denmark after the 1973 enlargement. The latter two parliaments immediately started to focus on the preliminary sifting of incoming draft EC documents, and on the ex ante briefing of Brussels-bound ministers, respectively.10 As to the setup of the committee system, models range from centralization of European affairs in a European Affairs Committee (EAC), to the allocation of European affairs to sectoral standing committees depending on the subject area. Either way, when the focus of parliamentary involvement lies on individual government–parliament relations, the only question that needs to be solved here is which committee is suited best for conducting scrutiny. Decentralization may for instance follow the motto that ‘Europe is everywhere,’ so that, say, a draft agricultural directive is best sent to the parliamentary committee for agriculture. At the same time, such decentralization can in fact easily turn into fragmentation of scrutiny: if the prioritization of European affairs is left to sectoral committees, and higher importance is awarded to purely domestic bills, European scrutiny will remain patchy or absent. In that case, an apparently decentralized parliament may even witness, paradoxically, a centralization of scrutiny, as the Euro-specialists on the EAC are the only ones who are actually interested in EU affairs. Intermediary models include mechanisms where an EAC supports and coordinates the work of sectoral committees,11 or where, as in the much-lauded Finnish model, a European Affairs Committee deliberates with the government while delegating scrutiny work to the sectoral committees.12 Turning to the method of scrutiny, a categorization of parliaments depending on whether they routinely mandate Brussels-bound ministers, whether they

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systematically sift incoming documents while reserving the right to pass occasional resolutions, or whether they operate rather informally, offers an insight into how individual ministerial accountability is enforced in practice.13 This approach also allows one to take into account that formally binding mandates can be worded very broadly and applied leniently,14 while even informal parliamentary action can be very persuasive. On the other hand, a singular method, such as the imposition of scrutiny reserves barring ministers from giving consent to measures pending parliamentary deliberation, does not guarantee any particular substantive outcome. Nor does the legal basis of scrutiny necessarily say much about political practice. Several national constitutions feature a clause stipulating the right of parliament to give its opinion in EU matters, even if the practice remains hardly binding. The Danish parliament, the archetype of a strong scrutinizing body, operates on the basis of committee reports restating established practice.15 Either way, perhaps with the exception of France where parliament indeed depends on constitutional amendments in order to gain rights, specific EU-related constitutional clauses on parliament’s right to be involved are merely a lex specialis of existing general clauses enshrining a parliamentary system of government. It is exactly where written rules fail to adequately reflect reality that the approximation of the real-life ‘strength’ of parliaments in EU matters becomes relevant. Again concentrating on one-to-one government–parliament relations, political scientists have employed various assessment criteria in their comparative research, including, inter alia, the relative impact of parliamentary positions, the frequency of committee meetings, the involvement of MEPs and of sectoral committees in the scrutiny work, and the timing of parliamentary involvement.16 Having identified variation, research goes on to categorize and rank parliaments or chambers as strong, moderate or weak players. In addition, research attempts to explain these variations using different factors, such as the Northern-ness of a member state (the more Nordic the country, the stronger the parliament in EU matters), the Eurosceptic sentiment both in parliament and in the population, the powers of MPs in matters other than European affairs, or the Catholic/Orthodox share of the population, as opposed to Protestants, as a proxy for political culture (the more Catholic the country, the more lenient the scrutiny).17 Whatever the eventual position of a parliament as regards its own government, the impediments to scrutiny facing national parliaments are much the same throughout the EU. And whatever institutional and procedural setup is in place, the form and degree of scrutiny will depend to a crucial degree on the willingness of parliamentarians to allocate time and resources to actually make use of them.

Sharper scrutiny for a European purpose The European Union of course cannot simply conjure up stronger national parliaments once it comes to assume that stronger national parliaments are desirable from a European perspective. A strong EAC does not guarantee, and

European scrutiny in national parliaments 71 may even constitute a barrier to broad domestic parliamentary participation in EU affairs.18 Tight consultation routines in committees behind closed doors ensure efficient oversight but have little to do with public deliberation and the societal embedding of policy-making.19 And a candidate country might in fact be wise to trim the assertiveness of its parliament before accession, at least if it wishes its government to one day participate in EU policy-making in a reasonably normal fashion.20 Once a certain form and degree of individual national parliamentary participation in the EU is identified as desirable, however, then what EU measures can do is to stimulate such involvement and not make life more difficult for MPs than it necessarily is. Thus, measures agreed at EU level, in particular treaty provisions, may provide for enhanced information facilities to the benefit of national parliaments, based on the assumption that timely information is a prerequisite to domestic scrutiny. This idea has been implemented into Declaration 13 in the Maastricht Final Act, the Protocol on the role of national parliaments in the European Union annexed to the Treaty of Amsterdam, as well as in the successor Protocol to the Treaty establishing a Constitution for Europe. Furthermore, both the Amsterdam Protocol and, even more insistently so, the Constitutional Treaty Protocol, provide for a six-week time window to allow national parliaments to make heard their views before the placement of an item on the Council agenda. Also outside the actual Protocol, the Constitutional Treaty would include facilities to keep national parliaments informed about EU policies and other developments.21 Apart from these treaty-level features, COSAC, the Conference of Community and European Affairs Committees of Parliaments of the European Union, plus a delegation from the European Parliament (EP), adopted non-binding guidelines on minimum standards of parliamentary scrutiny in EU matters.22 These guidelines too focus on the need for early availability of documentation and explanatory memorandums, and the possibility of communication with the government. Neither national governments, nor the EU institutions, nor national parliaments themselves however seem ready to fix at EU level how and when and to what extent national parliaments should exercise scrutiny in European affairs. The European Parliament tends to put an emphasis on inviting national parliamentary scrutiny only in areas where there is no co-decision, implying that such scrutiny should ease when the EP asserts itself.23 Yet the member states, including MPs attending COSAC and the Convention, as well as the governments meeting in IGCs, insist that it is still up to the member states to decide how to give effect to their internal constitutional arrangements of parliamentarism.24 One might certainly add qualifications to these developments: to parliaments that exercise effective scrutiny as a matter of course, minimum standards and information facilities will provide little added value. To the contrary, parliaments may even be overwhelmed by a flood of documentation from Brussels.25 On face value, these measures are designed to stimulate and facilitate parliamentary participation in policy-making as regards the EU. Is that a strictly individual approach to parliaments? Is it merely the point to bolster the position of MPs as

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against their own executives? Where, then, does the collective involvement of MPs begin, if a dividing line can be drawn at all? The following section contrasts individual executive–legislature structures with tendencies towards strengthening a distinctly collective role of national parliaments in the European Union.

Parliamentarism beyond the member state What would a collective role of national parliaments imply? If national parliaments are to play a role outside the margins of their own member states and their own constitutional systems, it would appear that they should be encouraged to act in concert or at least interact in joint activities. Thus, in a very original form of collective involvement of national parliamentarians in the European institutional structure, MPs would meet in an interparliamentary assembly at European level. This was the case with the EP which, until the direct elections in 1979, comprised parliamentarians delegated from the national parliaments. At times, the idea to reintroduce the dual mandate is raised, either by establishing a third chamber next to the current European Parliament, or by replacing the EP with a chamber consisting of delegated national MPs altogether.26 The right and invitation for COSAC to adopt contributions, as included in the Amsterdam Protocol, is based on a notion of interparliamentary cooperation and a collective interest of parliamentarians as well. It is, however, very much conceivable that national parliaments play collective roles in the EU without ever interacting with each other. A clear example of such a scenario is the early warning mechanism for the principle of subsidiarity as included in the Constitutional Treaty. An intervention device that is based on the counting of incoming complaints from national parliaments against EU draft legislative acts, and on a verification mechanism which specifies when the number of complaints reaches certain thresholds of previously distributed votes, clearly assumes the existence of some kind of collective entity. For here a group of institutions (‘national parliaments’) is accorded a fixed total of votes (two per parliament), and one-third respectively one-quarter of the total (54 in the EU–27) against a proposal triggers the early warning system, prompting the initiator of the proposal to reconsider or at least justify its intentions. To trigger the system, national parliaments can, but do not have to, coordinate their efforts. In fact, when discussing the implementation of the anticipated system, several COSAC delegations noted that it should not be the role of the COSAC secretariat to try to assemble as many votes as possible.27 A parliament is entitled to consider proposals in complete isolation. Nevertheless, eventually even such a parliament will be treated as part of a collective once the votes are being counted. A similar picture emerges with respect to another Constitutional Treaty feature which is prominent, but which in the light of its binding nature deserves a far greater prominence than it usually does. The feature in question is the veto that is awarded to any one national parliament or chamber thereof to prevent the application of the simplified treaty revision procedure under Article IV-444 of the Treaty. National parliaments are thereby explicitly authorized to block a decision

European scrutiny in national parliaments 73 that could be taken by the European Council with the assent of the EP. Again, a national parliament does not need to consult any other national parliaments before it casts a veto, yet when it does, it exercises a right that is awarded to all national parliaments generically, irrespective of what domestic government–parliament relations look like. We see that what distinguishes collective from individual roles of national parliaments for EU purposes here is not the degree of cooperation and mutual information between parliaments, but the autonomy or separateness of MPs from their own national government that is assumed. Where member states are seen as ‘black boxes’ that are externally represented by a government, national parliaments are merely an aspect of internal constitutional arrangements that should be of no further concern to international organizations. Consequently, what a national institution other than the government does or does not do is a choice that is made with a view to purely internal, domestic, and therefore individual effects. A collective, and then a collective role, only emerges once national parliaments are treated as actors that possess a minimum degree of independence from their governments, and once a rudimentary duality in treating governments and parliaments as separate entities is introduced. Only when a parliament is recognized as a parliament, as an organ that has a life of its own and that can in a roughly comparable form be found in all member states, does it cease to be a mere part of a member state’s internal constitutional arrangements for EU purposes. A collective role requires the recognition that there are entities that qualify as potential members of a collective in the first place. A collective role is then imaginable even if the collective’s members have absolutely no interest in communicating with each other, or in deploying any EU-related activities at all.

Individual activity, collective involvement: the blurred line National parliaments can be approached as purely individual actors, who decide for themselves how to treat their own governments while enforcing, or not enforcing, accountability in a purely domestic setting. Alternatively, they can also be viewed as a collective of actors who are united by a common interest, for instance because they found themselves in a comparable situation as European integration progressed. Yet it is one thing to treat parliaments as a collective – it is a completely different question whether a national parliament actually interprets its own position to be one part of a collective. The introduction of a duality in the national governmental layer as between parliament and cabinet ultimately points to juxtapositions which usually do not exist. Parliamentarians in Western parliamentary democracies can at times be very much united as against a government, yet for all practical purposes they are far more accurately treated as multi-member assemblies divided into political parties who are either in government or in opposition. When a parliament acts by majority, and when that majority supports, and when that majority actually is the government, then the theoretical government-versus-parliament duality quickly

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diminishes. This is not to say that government and parliament are one; but it can help explain why truly collective positions as between parliaments of different member states who actively cooperate with each other are rather scarce. COSAC does not have a particularly high profile; it is in fact little known outside the usual circles of academics and policy-makers. And a major reason for this lack of profile is that concerted interparliamentary action presupposes a minimum degree of solidarity among MPs. Parliamentarians must be willing to bypass their own governments on an international arena. So far, however, the major concerns facing COSAC are rather whether delegates are present in anything more than a personal capacity, whether the participating parliaments define COSAC as a loose forum or as an institution of its own right, whether it should be the role of national parliaments to engage in any kind of activity outside their member state in the first place, whether they should risk any open competition with the EP, and, most importantly for the present purpose, whether interparliamentary solidarity is sustainable enough for COSAC to confront the Council. Parliamentarians who feel well represented by their own government will have little desire to develop any parallel activity, which might be considered as a principal acting next to, and in opposition to, its own agent. 28 Collective action of parliaments as against EU institutions, in particular the Council, inevitably has repercussions on the individual domestic scene. A national parliament addressing the Council automatically implicates its own government. A parliament criticizing the Commission for breaches of subsidiarity while its own government has no objections against an EU measure, or a parliament that refuses to criticize the Commission even though its government is opposed to a measure, will be dealing with the effects of its defiance individually in a purely domestic political setting.29 Again we see a blurring of the border between individual and collective parliamentary involvement in the EU. The other side of this coin is that even parliamentary action that is intended to have purely internal effects as regards national will-formation can have major Europe-wide repercussions, especially if taken together with national parliamentary action in other member states, autonomous as they may be. Drafted in an individual manner, in that it is up to each parliament how to make use of its powers as regards its own government, it nevertheless implies the existence of a collective which is conveniently labelled ‘the national parliaments’. A genuine collective based on interparliamentary solidarity may of course never emerge if each parliament focuses on the domestic accountability of national ministers for protecting the national interest only. At the same time, if more national parliaments adopt a more proactive approach to accountability and start to impose hand-tying mandates upon ministers, then the repercussions of this are not limited to the member states concerned: sharpened scrutiny and tied hands affect the speed, efficiency, confidentiality and collegiality of decision-making in the Council as a whole.30 Needless to say that an overloaded EU decision-making process quickly backfires on the member states, including the pragmatic ones, but also those who have over-politicized European integration domestically. Again, European political reality renders the theoretical distinction between the individual and collective role of national parliaments partly obsolete.

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A collective role as the way ahead? It might be tempting to argue that as long as national parliaments are confined to their own member state individually, they are doomed to be marginalized. After all, ministerial accountability for EU matters only gets them so far if the practical workload is inhibitive while public interest is low. Technocratic pre-cooking of EU decisions in COREPER, and policy implementation by comitology, does not facilitate accountability either. And even if ministers themselves are cornered over their bargaining behaviour, they may very well point to the necessities of European compromise-building, and hint at the undesirable alternative prospect of being outvoted. All this, the minister would argue, simply comes with a European integration project to which the member states have rightly and unanimously committed themselves. In the light of this, collective and unmediated participation of parliamentarians in the EU might come as a long sought-for relief. In fact, it might even come to become perceived as the avenue of choice, freeing MPs from domestic constraints and giving effect to modern notions of multi-level governance or polycentric constitutionalism as applied to the European polity.31 In fact, national parliaments, through their individual activities, could even be considered to collectively legitimize Council decision-making as such. They might furthermore be seen to enhance the legitimacy of the Commission if they invite and call to account commissioners, an option that is not prohibited and that the Commission itself actively opens up to. Surely, Europe is too polycentric to justify any rigid separation of individual and collective involvement of national parliaments: one affects all, all affect one. Yet it would miss the essence of the polycentric paradigm to conclude that, because Europe is polycentric, parliaments now have become a collective with a joint mission of any kind. The notion that Europe is polycentric, or governed by multilevel governance, means that the role of national actors is exactly not just collective, but that individual and collective notions are intertwined, there being natural limits also to the collective. A very practical limit to collectivism is, for example, the public legitimacy perception of the EU. From the perspective of member state A, parliamentary scrutiny in neighbouring member state B has an impact on that government individually, indirectly on the Council as a whole, and ultimately back on member state A (if, say, lobbying in member state B prevented the adoption of an EU-wide directive longed for by member state A). Yet that does not positively affect the legitimacy perception in member state A as regards the European Union. To put it bluntly, the Irish neither consciously suffer from weak parliamentary oversight in Greece, nor are they in any way comforted by the strict scrutiny practice in Denmark, nor are they relieved to see the Commission President appear to answer questions in the French parliament. Individual and collective roles of national parliaments overlap as far as choices in national and European arenas affect political actors in both realms. Both roles, intertwined though they may be, have their inherent limitations.

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Conclusion Whether one treats the role of national parliaments in the EU as being individual or collective in nature is largely a question of perception. A purely individual role is easily established where member states are left alone to define which model of parliamentary participation fits best with their constitutional arrangements, history, political culture, party landscape, public opinion, and so on. If a parliament then calls its government to account for its EU policies, for example, its negotiating behaviour in the Council, or if it actually mandates ministers before Council sessions, it would do so in a domestic context under national rules of parliamentary confidence and ministerial accountability. That is not to say, however, that a national parliament cannot have an impact on the EU as a whole: a parliament that ties the hands of its minister restricts the government in finding compromises, and it also makes a minister’s bargaining position more rigid. Either way, the decision-making process of the entire Council and all its members is affected. If more parliaments adopt similar tactics, the effects are aggravated. At this point the conceptual step towards a collective role of national parliaments is already made: it emerges as soon as one explicitly articulates that in all member states there be a minimum duality in the national governmental structure as between a cabinet and a parliament. As soon as the very term ‘national parliaments’ is employed in an EU context, a collective of actors is recognized, even if that collective is quite heterogeneous, and even if the parliaments in that collective happen to see their own role in purely domestic terms. Thus, a parliament cannot escape being qualified as one of a set of national parliaments, even if it concentrates on the accountability of its own ministers and desires no immediate contact with either the EU institutions or the parliaments of any other member states. Of course, where either a genuinely concerted interparliamentary stance is adopted, or where a parliament makes use of generic tools available to all national parliaments in an EU framework, individual effects will arise on the respective domestic scene. If MPs bypass their government to criticize the Council, in which their own government participates in decision-making, or if MPs criticize the Commission against their own government’s wishes, the scores will be always settled domestically and individually, under the close attention of the population of the member state concerned. Thus, the use of strict categorizations of a measure’s being intended to promote either individual or collective involvement of parliaments in the EU are superseded by the polycentric character of the European Union where actions in either realm affect the other, and can backfire on the original realm. Polycentrism or multi-level governance does not equate with a collective role for national parliaments: each parliament still caters to its constituents in its own member state. But these constituents, as well as their parliamentarians, are well advised to consider that sharpening parliamentary scrutiny of European affairs at home, for instance by mandating ministers or improving committee work, now carries with it repercussions that may go far beyond their national borders and the world of purely domestic political issues.

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Notes 1 See D. Judge (1995) ‘The failure of national parliaments?’, West European Politics, 18: 79–100; P. Norton (ed.) (1995) ‘National parliaments and the European Union’, Journal of Legislative Studies, 1, special issue 3; A. Maurer and W. Wessels (eds) (2001) National Parliaments on their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos). 2 T. Raunio (1999) ‘Always one step behind? National legislatures and the European Union’, Government and Opposition, 34: 180–202; P. Dann (2004) Parlamente im Exekutivföderalismus – Eine Studie zum Verhältnis von föderaler Ordnung und parlamentarischer Demokratie in der Europäischen Union (Berlin, Heidelberg, New York: Springer). 3 See C. Bengtson (2003) National Parliaments in European Decision-Making: A Real Prospect or Wishful Thinking?, paper, The Federal Trust for Education and Research, London; Swedish Riksdag (2001) National Parliaments and the European Union, COSAC Discussion Document, Stockholm; European Convention (2002) The Role of National Parliaments in the European Architecture, CONV 67/02. 4 See Norton, op. cit.; Judge, op. cit.; A. Maurer (2002) National Parliaments in the European Architecture: Elements for Establishing a Best Practice Mechanism, European Convention Working Group IV, working document no. 8. 5 D. Rometsch and W. Wessels (eds) (1996) The European Union and Member States: Towards Institutional Fusion (Manchester: Manchester University Press). 6 This methodological approach to national variations is further elaborated in P. Kiiver (2006) The National Parliaments in the European Union: A Critical View on EU Constitution-Building (The Hague, London, New York: Kluwer Law International). 7 See C. Harlow (2002) Accountability in the European Union (Oxford: Oxford University Press), p. 10. 8 S. Smismans (1998) ‘The role of the national parliaments in the European decision-making process: addressing the problem at the European level’, ELSA Selected Papers on European Law, 9: 49–76, p. 57. 9 See Judge, op. cit. 10 On the UK, see : A. Cygan (1998) The United Kingdom Parliament and European Union Legislation (The Hague, London, Boston: Kluwer Law International); on Denmark, see: F. Laursen (2001) ‘The Danish Folketing and its European Affairs Committee: strong players in the national policy cycle’, in Maurer and Wessels, op. cit. 11 On France, see : J.-L. Sauron (1999) ‘Le controle parlementaire de l’activité gouvernementale en matière communautaire en France’, Revue trimestrielle de droit européen, 35: 171–200; on the Netherlands, see: B. Hoetjes (2001) ‘The Parliament of the Netherlands and the European Union: early starter, slow mover’, in Maurer and Wessels, op. cit.; on Germany, see: H. Hofmann (2003) ‘Parliamentary representation in Europe’s system of multi-layer constitutions: a case study of Germany’, Maastricht Journal of European and Comparative Law, 10: 39–65. 12 See N. Jääskinen and T. Kivisaari (1997) Parliamentary Scrutiny of European Union Affairs in Finland (Helsinki: Finnish Eduskunta). 13 See A. Fraga (2000) ‘Wanting more power … a struggle for what? Comments on the report by Mr Tapio Raunio “Parliamentary scrutiny of EU decision-making: comparing national systems”’, in Finnish Eduskunta (ed.) National Parliaments and the EU – Stock-Taking for the Post-Amsterdam Era, October 1999 COSAC seminar, Eduskunnan Kanslian Julkaisu 1/2000. 14 See on the Austrian example: H. Hegeland and C. Neuhold (2002) ‘Parliamentary participation in EU affairs in Austria, Finland and Sweden: newcomers with different approaches’, European Integration online paper 6/10, eiop.or.at. 15 See Laursen, op. cit. 16 See Norton, op. cit.; T. Bergman (1997) ‘National parliaments and EU Affairs Committees: notes on empirical variation and competing explanations’, Journal of European Public Policy, 4: 373–87; T. Raunio and M. Wiberg (2000) ‘Does support lead to ignorance? National parliaments and the legitimacy of EU governance’, Acta Politica, 35: 146–68; Maurer and Wessels, op. cit. 17 See for a test employing five variables to explain relative scrutiny strength, as well as for references: T. Raunio (2005) ‘Holding governments accountable in European affairs: explaining crossnational variation’, Journal of Legislative Studies, 11: 319–42.

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18 See S. Ramstedt, ‘Comments on the report by Mr Tapio Raunio “Parliamentary scrutiny of EU decision-making: comparing national systems”’, Finnish Eduskunta, op. cit.; T. von der Vring (1996) ‘On legitimation of the European Union – national parliaments and the European Parliament’, in G. Winter (ed.) Sources and Categories of European Union Law: A Comparative and Reform Perspective (Baden-Baden: Nomos), pp. 385–408, p. 401. 19 P. Weber-Panariello (1995) Nationale Parlamente in der Europäischen union (Baden-Baden: Nomos), p. 308; O. Tans (2006) ‘The Dutch parliament and the European Constitution: how yes led to no’, in P. Kiiver (ed.) National and Regional Parliaments in the European Constitutional Order (Groningen: Europa Law Publishing). 20 S. Rodin (2006) ‘The Croatian parliament in transition: from authoritarian past to European future’, in P. Kiiver (ed.) (2006) National and Regional Parliaments in the European Constitutional Order (Groningen: Europa Law Publishing). 21 See the Treaty establishing a Constitution for Europe, CIG 87/2/04 REV 2: Articles 1, 2 and 7 of Protocol no. 1 on the role of national parliaments in the European Union (distribution of EU consultation papers, legislative proposals and auditing reports among the national parliaments), Article I-18 (2) (notification prior to the application of the flexibility clause), Articles I-42 (2), III260, III-261, III-273 and III-276 (national parliamentary monitoring of the activities of Europol and Eurojust), Article I-58 (2) (notification about incoming EU membership applications), Article IV-443 (1) (notification of Treaty revision initiatives) and Article IV-444 (3) as well as Article 6 of Protocol no. 1 (notification prior to the intended application of the passerelle clause). 22 Guidelines for relations between governments and parliaments on community issues (instructive minimum standards) or ‘Copenhagen Parliamentary Guidelines,’ COSAC, 2003/C 154/01. 23 EP Committee on Constitutional Affairs Report 23 January 2002 of, Social Security Commissioner Decisions: Attendance Allowance 5-0023/2002. 24 Preamble to the Amsterdam Protocol on the role of national parliaments in the European Union; Preamble to Protocol no. 1 to the Constitutional Treaty; Article 9 of the Final Report of Convention Working Group IV; Preamble to the ‘Copenhagen Parliamentary Guidelines’. 25 S. Weatherill (2003) ‘Using national parliaments to improve scrutiny of the limits of EU action’, European Law Review, 28: 911. 26 See prominently: J. Fischer, From Confederacy to Federation – Thoughts on the Finality of European Integration, speech delivered at Humboldt University in Berlin, 12 May 2000. 27 Interventions by the parliamentary delegations of Italy, Spain, Belgium, the Netherlands, as well as of the European Parliament, 32nd COSAC, The Hague, November 2004. 28 See the contribution by T. Raunio in this volume. 29 See for an assessment of the early warning system: Kiiver, op. cit. 30 See F. Hayes-Renshaw and H. Wallace (1997) The Council of Ministers (London: Macmillan), p. 291; Dann, op. cit, p. 413; von der Vring, op. cit., p. 397. 31 L. Besselink (2006) ‘National parliaments in the EU’s composite constitution: a plea for a shift in paradigm’, in P. Kiiver (ed.) National and Regional Parliaments in the European Constitutional Order (Groningen: Europa Law Publishing).

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National legislatures in the EU Constitutional Treaty Tapio Raunio

Effective scrutiny of the government requires information. Parliaments need information about the position of the government, and in the context of the EU, information about the positions of the other member countries and the EU institutions. The earlier MPs receive this information, the better are their chances of influencing the behaviour of their own government and also the final outcome. Crucially, both the intergovernmental and multi-level governance accounts (see the introductory chapter) of how the EU works paint a picture of information asymmetry, with national (and regional) governments and civil servants reaping the benefits of active cooperation at the European level while national parliamentarians are sidelined from the negotiations. Consequently parliaments have so far been dependent largely on information made available by their own government. The resulting information deficit reduces the ability of domestic MPs to control their governments in European matters. Even if domestic legislators were genuinely interested in European matters, they might not know what questions to ask from their ministers. While such pessimistic interpretations might actually underestimate the information available to national parliaments, the challenges facing them deserve to be taken seriously. This is where the constitutional rules adopted at the European level are potentially of great significance, particularly so for those member states where the legislative branch has traditionally been weak in relation to the executive even independent of European integration. This chapter analyses the implications of the Constitutional Treaty1 for the national parliaments, with specific focus on access to information and on monitoring compliance with the subsidiarity principle. The main argument is that while the Constitutional Treaty will strengthen the position of the national legislatures in the EU policy process, this empowerment does not constitute a major departure from the present situation. National parliaments will have better access to EU documents, and these information rights improve the capacity of national parliaments to control their governments. National parliaments will also gain a collective role in overseeing the implementation of the subsidiarity principle, but the effects of this mechanism will probably remain modest. The chapter concludes by proposing a set of reforms that would enable national legislatures to make a stronger impact on EU politics.

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National parliaments in the Convention The debate about the constitutional regulation of national parliaments at the European level has focused on two questions: first, the right of national legislatures to receive documents from the European level, and second, the strengthening of the collective role of national parliaments through either consolidating interparliamentary cooperation or establishing a separate chamber of national MPs. While most member states have supported initiatives concerning the information rights of national parliaments, there has been much less agreement concerning the collective role of national legislatures. Considering the lack of consensus about the future role of national parliaments, it was pretty certain from the outset that the Convention (which convened from February 2002 to July 2003) and the subsequent Intergovernmental Conference (IGC) would not result in any major changes concerning the function of national legislatures in the EU policy process. To begin with, the overwhelming majority, if not all, of member states resisted reforms that would have given the Union a say about how national parliaments should organize their scrutiny of government in EU affairs. From a constitutional perspective, inserting to the EU’s constitution such an Article about how national legislatures should organize their scrutiny of government in EU matters, would have implied a radical departure from the status quo. Thus, it was clear that it would remain in the competence of the member states to decide how their parliaments control their governments in EU matters. Neither was there sufficient support among national governments for institutionalizing the collective role of national MPs at the European level. The majority of the member states, as well as the Commission and the European Parliament (EP), have over the years advocated reforms that aim at preserving the inter-institutional status quo while improving the capacity of individual parliaments to hold their governments accountable through a better flow of information from the EU institutions to the national parliaments. Initiatives for a collective organ of national MPs have typically emanated either from Great Britain or France. The interest of French politicians in establishing a collective organ of national MPs stems in part from the desire to curb the powers of the EP and from strengthening the role of the French parliament in national EU decision-making. According to such proposals the chamber or congress of national MPs would be either a purely consultative body, convening to debate the state of the Union, or a constitutional watchdog, with the specific function of monitoring compliance with the principle of subsidiarity and the distribution of powers between the EU and the member states, not a legislative chamber.2 The same line of thinking was behind Giscard d’Estaing’s idea about the Congress of the Peoples of Europe that was initially included in the first draft for the constitution published in October 2002.3 In April 2003 the Praesidium of the Convention proposed a new draft Article to be inserted in Title VI of part One of the Constitutional Treaty (‘The Union’s Democratic life’), providing for the establishment of a Congress which would have met once every year, bringing together representatives of the EP and national parliaments. According to the

National legislatures in the EU Constitutional Treaty 81 initiative the Congress would have comprised no more than 700 members, with 2/ 3 of them from national legislatures. Its functions were to be purely consultative: the Congress would hear a ‘State of the Union’ speech by the President of the European Council and be presented with the Commission’s annual legislative programme.4 Giscard d’Estaing’s idea met strong resistance, and hence it was dropped from the draft constitution. Apart from lacking the needed support, the negative consequences of such initiatives were obvious.5 Adding another institution to the European level would work against making the EU political system more transparent and understandable. Regardless of what the precise function of that second chamber would be (a co-legislator with the Council and the EP, or a watchdog of the subsidiarity principle), its introduction would make the EU system more complex. There would undoubtedly also be conflicts between the new chamber and the EP. More importantly, it would confuse the relationship between the legislative and executive organs, as national MPs – who at the national level control their governments in EU matters – would simultaneously become directly involved in shaping EU legislation. In terms of its composition, it is hard to understand how the decisions of such a body would differ from those of the Council. As the composition of each national delegation would probably reflect the strength of the parties in the parliament, this would imply that the position of each national delegation would be identical to that of its national government.6 And, as elections are held at different times in each of the member states, the composition of the chamber would be constantly changing, and this would further hamper its work. The introduction of a chamber of national MPs at the European level would also complicate work within domestic legislatures. The primary focus of MPs is national legislation and it is questionable to what extent they would be able to combine such duties with work at the European level, as happened before the introduction of direct elections to the EP in 1979. A potential solution that was suggested, the ‘EU-MPs’ concentrating exclusively on representing their parliaments in the EU, is equally problematic, as it would produce a system of two-tier MPs – those working in national capitals and those working in Brussels – that would presumably both be elected under the same electoral system. This might weaken the re-election chances of the Brussels-based national parliamentarians, as they would be excluded from the media attention given to their colleagues working back home. However, while radical changes were thus not to see daylight, national legislatures did feature prominently in the debates in the Convention – but had little prominence during the IGC that followed, largely because issues concerning national parliaments had already been resolved during the Convention. This focus on national parliaments in the Convention had two different motivations: The burgeoning interest in a larger European role for national parliaments (by no means confined only to France or the United Kingdom) sometimes reflected the fear of certain national parliamentarians that the evolution of the European Union’s legislative structures was condemning them to an ever more marginal role. In other quarters, by contrast, the hope was occasionally expressed that national

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parliamentarians would be more enthusiastic advocates of continuing European integration if they had a greater direct stake in the process.7 Indeed, while previous speeches and reform proposals about strengthening the role of national parliaments could often be disregarded as cheap talk aimed at domestic audiences, the increased political significance of the Union and the Laeken Declaration had taken the debate to a completely another level. Declaration No. 23 of the Treaty of Nice listed four key questions which the next IGC should address, and one of them was ‘the role of national parliaments in the European architecture’.8 And the Laeken Declaration from December 2001 set more precise questions about national parliaments: Should they be represented in a new institution, alongside the Council and the European Parliament? Should they have a role in areas of European action in which the European Parliament has no competence? Should they focus on the division of competence between Union and Member States, for example through preliminary checking of compliance with the principle of subsidiarity?9 The Convention established a separate Working Group (WG IV), entitled ‘The role of national parliaments’, for meeting the demands of the ‘Laeken mandate’.10 The role of national parliaments in monitoring the subsidiarity principle was primarily discussed in WG I on ‘The principle of subsidiarity’. The proceedings of WG IV illustrated well both the almost unanimous desire to improve national scrutiny of governments in EU matters, and the lack of enthusiasm for the establishment of a collective organ of national MPs or for changing the functions of the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC). The WG agreed that enhancing the input of national parliaments would make the EU more democratic and legitimate, but it also recognized that the primary role of national parliaments in European matters was carried out through effective scrutiny of their government’s action at the European level. It was also acknowledged that the different systems for national parliamentary scrutiny reflected different arrangements for the relations between governments and national parliaments in conformity with constitutional requirements in individual Member States, and that it would not be appropriate to prescribe at European level how the scrutiny should be organised.11 On COSAC, the WG came out in favour of status quo: The mandate of COSAC should be clarified to strengthen its role as an interparliamentary mechanism. It could usefully act as a platform for a regular exchange of information and best practices, not only between European affairs Committees, but also between sectoral standing committees. It should become a stronger network for exchange between parliaments.12

National legislatures in the EU Constitutional Treaty 83 The vast majority of the recommendations of the WG on national parliaments were almost without any controversy endorsed first by the Convention13 and then by the IGC. Hence they found their way into the Constitutional Treaty. The following two sections of the chapter will examine the two main changes in the Constitutional Treaty concerning national parliaments, improved access to information, and monitoring the subsidiarity principle.

The good news: improved access to information The main sections of the Constitutional Treaty dealing with national parliaments are in two Protocols annexed to the Treaty: the ‘Protocol on the Role of National Parliaments in the European Union’ and the ‘Protocol on the Application of the Principles of Subsidiarity and Proportionality’. The former Protocol is designed to make national MPs better informed about the European decision-making process, while the latter focuses specifically on monitoring the subsidiarity principle. Information is a fundamental prerequisite for both controlling the government and influencing policy proposals coming from the executive. Overall, the ability of parliaments to control executives has arguably declined in recent decades (see the introductory chapter), and this is in no small part caused by the huge informational advantage enjoyed by the executive branch. The process of European integration is certainly one of the reasons why this has happened – providing executives an arena for action away from domestic parliamentary scrutiny, and a near monopoly of information in an ever larger range of public policies. However, national legislatures have in response to these developments introduced changes – both to national constitutions and to their own rules of procedure – that force governments to explain their EU policies and actions in the European arena to parliaments.14 The driving force behind this partial retrenchment is the desire by parliamentarians to redress the ‘information gap’ between governing elites and the parliamentary rank-and-file.15 Nevertheless, in European matters parliaments have in most member states so far been largely dependent on information provided by the government. The problem has been worsened by the fact that most European legislatures have quite limited secretarial and research staff,16 and therefore parliaments have not been able to produce complementary or alternative information in addition to that provided by the government. The biggest challenge facing national legislatures is thus how to reduce the informational asymmetry that is currently strongly in favour of the executive. To succeed in this formidable task, national parliamentarians need information about the preferences and negotiation strategies of (a) their governments, (b) the EU institutions (Commission, EP), and (c) the other member states.17 The Constitutional Treaty goes a long way towards remedying the existing information deficit. When comparing the new text with that included in the Protocol attached to the Amsterdam Treaty, the differences are quite significant indeed. According to the new Protocol,

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Tapio Raunio draft European legislative acts sent to the European Parliament and to the Council shall be forwarded to national Parliaments. For the purposes of this Protocol, ‘draft European legislative acts’ shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of justice, recommendations from the European Central Bank and requests from the European Investment Bank for the adoption of a European legislative act.

The difference between the new text and the Amsterdam Treaty is clear, as the latter stated that national legislatures had the right to receive only ‘legislation as defined by the Council in accordance with Article 151. 3 of the Treaty establishing the European Community’. Secondly, these legislative documents shall be sent directly to national parliaments by the respective institutions, whereas under the present rules the ‘Government of each Member State may ensure that its own national parliament receives them as appropriate’.18 National parliaments also gained improved access to non-legislative documents. According to the new Protocol, ‘Commission consultation documents (green and white papers and communications) shall be forwarded directly by the Commission to national Parliaments upon publication’. Here the wording is almost the same as in Amsterdam Treaty, which stipulated that these documents were to be ‘promptly forwarded’ to national parliaments.19 But there are new documents that the national parliaments are entitled to receive. These are the Commission’s annual legislative programme ‘as well as any other instrument of legislative planning or policy’. Moreover, national legislatures will also receive the annual reports of the Court of Auditors. Not only do parliaments gain much better access to documents, they will also in the future have better opportunities to follow what actually goes on in the Council. Hitherto the Council has met behind closed doors, but according to Article I-24(6) it shall meet in public when examining and adopting a legislative proposal.20 In addition, the Protocol on national parliaments states that the ‘agendas for and the outcome of meetings of the Council, including the minutes of meetings where the Council is deliberating on draft European legislative acts, shall be forwarded directly to national Parliaments, at the same time as to Member States’ governments’.21 As a result of these changes, national parliaments – and indeed, the media and citizens – have finally the chance to hear and see what the ministers actually say and how they vote in the Council. However, the significance of these changes should not be overestimated. The Council has since 1994 published its voting records and since 1999 the records are available at the Council’s website. But, while the final decisions are taken by the ministers in the Council, it has been estimated that even up to 90 per cent of all legislative issues are already decided by civil servants in COREPER and in the Council’s working groups. As a result, actual voting in the Council is still relatively rare.22 This probably lessens the informational value (for example, through reducing the number of speeches made and the time spend on debating matters) of the Council’s meetings. Moreover, the increased openness and access to the

National legislatures in the EU Constitutional Treaty 85 minutes of the Council’s meetings concerns only those sessions when the Council acts in legislative capacity. This means that those meetings dealing with other than legislative issues, such as coordination of national economic and employment policies, or indeed policy-making in general, fall outside of this category. 23

Addressing the legitimacy deficit: monitoring subsidiarity Of the various Articles in the Constitutional Treaty that mention national parliaments, by far the most talked about has been the ‘early warning system’ established for monitoring the principle of subsidiarity. In fact, while both the role of national parliaments and the proper application of the subsidiarity principle had been on the EU’s agenda for at least a decade, the Convention was really the first time that a connection between the two was firmly established.24 However, the argument put forward in this section is that national legislatures are unlikely to make much use of this mechanism and that it can even potentially cause more damage than good, both nationally and at the European level. The rules of the early warning system are spelled out in the Protocol on the Application of the Principles of Subsidiarity and Proportionality. The procedure includes five steps:25 1

2

3

4

First the Commission must examine its legislative proposals for their conformity with the principles of subsidiarity and proportionality. Before proposing new legislation, the Commission must satisfy itself that the matter could not be better regulated at national rather than European level (‘subsidiarity’) and that the measures proposed stand in a reasonable relationship to the goals to be achieved (‘proportionality’).26 Then the Commission must forward its legislative proposals to the national parliaments at the same time as it forwards them to the Council and the EP. Within six weeks of receiving the proposal, national parliaments may issue their opinion on whether the initiative complies with the subsidiarity principle (but not with the related principle of proportionality). This first phase constitutes a preliminary reading involving only the national legislatures. After the six weeks have elapsed, the Commission then submits the (possibly) revised proposal for ordinary processing according to the relevant legislative procedure. Any subsequent resolutions of the EP or positions adopted by the Council on legislative proposals must equally be sent immediately to the national parliaments.27 If a chamber of a national parliament believes that a proposal is in breach of the principle of subsidiarity, it may then send to the Presidents of the EP, Council and Commission a ‘reasoned opinion’ (‘the yellow card’) on the proposed legislation, setting out the reasons for its concerns. If these ‘reasoned opinions’ represent at least one third of the votes (at least one quarter in the case of Commission proposals or initiatives emanating from a

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Tapio Raunio group of member states under the provisions of judicial cooperation in criminal matters and police cooperation) allocated to national parliaments and their chambers (unicameral parliaments have two votes; each chamber of a bicameral system has one vote), the Commission must review its draft legislation. The Commission may then decide whether to maintain, amend or withdraw its proposal. This means that the Commission (which can be voted out of office by the EP, not the national parliaments) remains the agendasetter in the process, and that it can ignore the national parliaments’ concerns and press forward with its proposal without making any amendments. 28 Where a national parliament believes that the legislative initiative infringes the principle of subsidiarity, it may ask its national government to bring a case before the European Court of justice (ECJ). This step, however, can only be taken retrospectively when the legislation has been adopted. This final stage does not mean any substantive changes to the existing arrangements. Already now any member state, perhaps at the request of its parliament, can bring actions before the Court if it thinks that the EU has no right to legislate on the subject matter.29

The ‘early warning system’ is not entirely without positive consequences. It can make the national parliaments feel that they genuinely have a say in the EU policy process, and this can produce a potentially very significant ‘spill-over’ effect, making them invest more resources in scrutinizing EU matters. It can also force the Commission to be more detailed and explicit in its arguments for why new EU level legislation is called for. However, the negative aspects of the mechanism are also worth closer examination. The first and perhaps biggest problem with the system is that through making national parliaments direct participants in the EU’s legislative process, it can be argued to go against the very principle of parliamentary democracy. After all, the defining criterion of parliamentary democracy is that the government is accountable to the legislature and can be voted out of office by it. The parliament (the principal) delegates policy-making powers to the executive (its agent), which then rules with the support of the legislature. But now the subsidiarity control mechanism can reverse these roles.30 If a parliament rejects an initiative on the grounds of it breaking the subsidiarity principle, it will then probably adopt a different stand from the body (the government) which it supposedly controls.31 This could be potentially damaging for the government that has been consulted in drafting the initiative (and has probably already discussed this initiative in the Council).32 The second problem is that concerns over subsidiarity can be very difficult to separate from concerns about the policy contents of the initiative. The mechanism can be used by a parliament that simply does not agree with a certain initiative, disguising its concerns as a violation of the subsidiarity principle.33 Third, the process is an entirely voluntary one, and it is very likely that parliaments will use it with varying degrees of interest. If parliaments have few resources available (as is true, for example, in most of the new member states), then investing scarce resources in checking subsidiarity is probably not on top of the list for MPs.34

National legislatures in the EU Constitutional Treaty 87 Indeed, as with overall scrutiny of the government in EU matters, it is probable that only a minority of national parliaments will adopt a comprehensive approach to this new system, subjecting most legislative initiatives to careful examination. This mechanism will therefore put demands on exchange of information between national parliaments (for example, through COSAC),35 as each parliament will need information if the other legislatures are planning to submit opinions stating that the initiative is in breach with the principle of subsidiarity. And finally, even if parliaments could muster the required amount of votes for showing the ‘yellow card,’ the Commission still holds the ultimate power in the process and can ignore the national parliaments’ opinions. Giving parliaments the power of veto (‘the red card’) would thus have provided national MPs with a considerably stronger incentive for taking the ‘early warning system’ seriously.36 However, it is understandable why the ‘red card’ alternative was not chosen as it could have provided national parliaments a (potentially) effective mechanism for blocking a significant amount of EU legislation. The ‘early warning system’ is unlikely to have much significance. It may encourage the Commission to pay more attention to justifying its proposals, and it may stimulate tighter control of governments by individual parliaments, but it is very probable that the mechanism will be used only very seldom. It is a relatively harmless procedure, primarily designed to inject legitimacy into the EU policy process: member state politicians held that [national parliaments] were a key to strengthen the democratic legitimacy of the EU by bringing it ‘closer to the citizens’. It was thus seen as a logical and widely accepted argument that the political institutions that were seen to have suffered most from ever more transfers of sovereignty to the European level – [national parliaments] – should be entitled to have a say regarding the application of the principle of subsidiarity, putting – if deemed necessary – a brake on the appropriation of policy-making competencies by the Commission.37 Moreover, it must be emphasized that the proper implementation of the subsidiarity principle is only one part of the general problem of ‘creeping competence’, and hence even effective use of the ‘early warning system’ cannot alone put brakes on centralization. After all, subsidiarity applies only in the exercise of conferred powers that are either shared or complementary: the principle has no right to challenge the existing acquis communautaire, nor the Commission’s right of initiative.38 Also the image of Commission, EP, and the ECJ as institutions constantly stretching and overstepping the limits of their powers is somewhat outdated.39 As Vergés Bausili summarizes: ‘the early warning system can be more accurately pictured as a response to legitimacy issues than to strictly competence matters.’40 The final section of this chapter summarizes the main arguments and makes a set of recommendations on how to improve the involvement of national parliaments in EU governance.

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Conclusion While most national parliaments have been rather late adaptors to integration, there is no doubt that they do now exert tighter scrutiny on their governments than still a decade ago, and that this positive trend should not be reversed. The Constitutional Treaty does its share in facilitating a stronger role for national legislatures, but in the end it is up to national MPs themselves to decide to what extent they want to become involved in EU matters. The changes included in the Constitutional Treaty will give parliaments better access to information. National MPs shall receive more documents from the European level, and these documents will be sent directly to parliaments at the same time as to national governments. Nevertheless, domestic legislatures still do not enjoy automatic access to several types of documents. As a result, the obligation to send documents to parliaments could in the future be extended to cover all documents used in making decisions in EU institutions, including documents on Common Foreign and Security Policy (CFSP) and those prepared by member states for the European Council. Also the decision for the Council to meet in public when acting as a legislative body is a step forward, allowing both parliamentarians and the citizens at large to witness what ministers do in Brussels. The logical extension of the new constitutional provisions would be that in the future Council would also process non-legislative items in public. To give parliaments sufficient time to deal with issues, the Council should also make its work more systematic, with no urgency procedures or other short-track options.41 Better organization would increase the legitimacy of the Council and provide reassurance to the voters about how the EU institutions work and how their ministers carry out their duties.42 The Constitutional Treaty will arguably strengthen the role of the European Council. Much of the intergovernmental coordination in the EU is carried out at the very highest political level in this institution, particularly so in foreign policy and in fixing the EU’s long-term priorities in economic policy. The ‘conclusions’ of the European Council have increased rapidly in length and encompass basically all conceivable policy sectors.43 This may not appear problematic for national parliaments. After all, in most issues the European Council still decides by unanimity, and hence parliaments can, at least in theory, veto any proposals they do not like. However, in reality the situation is more complicated. In order for parliaments to exercise meaningful ex ante control on their governments in the European Council, the agendas of the Summits would have to be available well before the European Council convenes, and the agendas should not be changed after they have been published.44 Until now, the agendas of the European Council have often been finalized far too late and have even changed during the course of the meetings. Particularly in such situations parliaments may not want to ex post veto the decisions of the European Council, especially as this might jeopardize the future influence of the country in EU negotiations, and because this could embarrass the national government, both in the European context and in national media. Hence effective parliamentary scrutiny of the Summits requires

National legislatures in the EU Constitutional Treaty 89 that the European Council works on the basis of fixed agendas that are published well in advance of the meetings.45 Finally, the ‘early warning system’ established for monitoring compliance with the subsidiarity principle will increase the involvement of national parliaments in the EU’s policy process. This mechanism was mainly introduced in response to legitimacy concerns, and it is very likely that its impact will remain modest. First of all, violations of the subsidiarity principle are by most accounts very rare, with national parliaments until now hardly ever voicing complaints about the EU institutions overstepping the limits of their formal competencies. And second, it is politically quite unlikely that the sufficient number of national parliaments would agree that a particular legislative proposal violates the subsidiarity principle. However, the ‘early warning system’ can nonetheless have a positive spill-over effect, with national legislators from now on paying more attention to EU matters in general. This would certainly be good news for anyone concerned about the level of parliamentary scrutiny in EU affairs.

Notes 1 1 At the time of writing this chapter (June 2006), the fate of the Treaty remains unclear. All references to the Treaty here are to the version (Treaty establishing a Constitution for Europe) published in the Official Journal of the European Union 2004/C 310/01. 2 For example, in the 1996–7 IGC the French government put forward a proposal about a chamber of national MPs, where the new chamber would have inherited some of the legislative powers of the EP and followed the application of the subsidiarity principle. In his speech to the Polish Stock Exchange in Warsaw in October 2000, the British prime minister, Tony Blair, supported the establishment of a second chamber of national MPs. The function of that chamber would have been to oversee the division of competencies between the EU and the member states and to play some kind of a role in the democratic control of second pillar issues, not to take part in the EU’s legislative process. The French prime minister, Lionel Jospin, in a speech in Paris in May 2001, advocated setting up a congress of national MPs that would convene on a regular basis to scrutinize the application of the subsidiarity clause and to discuss the state of the Union. The congress could also be the body responsible for approving more technical amendments to the Treaty. The Spanish prime minister, José María Aznar, in a speech in October 2001, came out in favour of giving the national parliaments a collective role in approving the delegation of competencies to the Union in matters not mentioned in the Treaty. Also Joschka Fischer, the German foreign minister, had advocated a chamber of national MPs in his speech in May 2000. According to Fischer the EU would have a bicameral parliament, with the lower house composed of national MPs and the upper house of either directly-elected senators (as in the US Senate) or representatives of national governments (as in Bundesrat). See Maria Valeria Agostini (2001) ‘The role of national parliaments in the future EU’, The International Spectator, XXXVI, 4: 35–7. 3 European Convention, Preliminary draft Constitutional Treaty. CONV 369/02, Brussels, 28 October 2002. 4 Franco Rizzuto (2003) ‘The new role of national parliaments in the European Union’, The Federal Trust Online Paper, 19/03 (London: June). 5 See Andreas Maurer (2002) ‘Optionen und Grenzen der Einbindung der nationalen Parlamente in die künftige EU-Verfassungsstruktur’, SWP-Studie S 29 (Berlin); and Andreas Maurer (2002) ‘Nationale Parlamente in der Europäischen Union – Herausforderungen für den Konvent’, Integration, 25, 1: 20–34.

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6 The possible exceptions are countries with minority governments. However, even in such situations the government normally controls a de facto majority in the parliament and hence it would be difficult to form a winning coalition that would be different from the government’s stand. See Niilo Jääskinen, ‘Euroopan unionin konstituutio – perussopimus vai perustuslaki?’, Oikeustiede – Jurisprudentia, XXXIV, 99: 71–153. 7 Brendan Donnelly and Lars Hoffmann (2004) ‘The role of national parliaments in the European Union’, European Policy Brief 3 (London: The Federal Trust, ), p. 1. 8 Treaty of Nice, Official Journal C 80, 10 March 2001. 9 Laeken Declaration – The Future of the European Union, The Laeken European Council, 14–15 December 2001. 10 The WG was convened on 26 June 2002 and submitted its report on 22 October 2002. The WG was chaired by the British Labour MP, Gisela Stuart, and it held nine meetings. For detailed information on the WG and plenary debates on the role of national parliaments, as well as on the activities of national parliamentarians in the Convention, see Tony Brown (2003) ‘National Parliaments in the Convention on the Future of Europe’, The Federal Trust Online Paper 31/03 (London: November), and Rizzuto, op. cit. 11 European Convention (2002) Final report of Working Group IV on the role of national parliaments, CONV 353/02, Brussels, p. 4. 12 European Convention (2002) Final report of Working Group IV on the role of national parliaments, CONV 353/02, Brussels, p. 15. 13 See in particular the plenary debates held on 28 October 2002 and on 17–18 March 2003. The exception was the idea of ‘a European week’. According to the WG IV’s final report, ‘a European week should be organised each year to create a common window for EU-wide debates on European issues in every Member State’. European Convention (2002) Final report of Working Group IV on the role of national parliaments, CONV 353/02, Brussels, p. 15. 14 See Katrin Auel and Arthur Benz (eds) (2006) The Europeanisation of Parliamentary Democracy (Abingdon: Routledge); and Andreas Maurer and Wolfgang Wessels (eds) (2001) National Parliaments on their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos). 15 Tapio Raunio and Simon Hix (2000) ‘Backbenchers learn to fight back: European integration and parliamentary government’, West European Politics, 23, 4: 142–68. 16 For information on research services in European legislatures, see William H. Robinson (2002) Knowledge and Power: The Essential Connection Between Research and the Work of Legislature (Brussels: The European Centre for Parliamentary Research and Documentation). 17 Having too much information is – at least in some member states – part of the problem, as MPs often find it very difficult to identify the important points from the mass of documents they receive. In addition, national parliaments should receive information that enables them to understand the consequences of the initiatives, particularly concerning their linkage with other policy questions and their long-term effects at both national and European levels. While parliaments do receive such information both from the Commission (in the text of the initiatives, particularly since 2003) and in the majority of the member states from their government (usually in the form of a memoranda or a summary accompanying the legislative proposal), national MPs do often find it difficult to grasp the broader implications of the legislation they are scrutinizing. 18 Protocol on the role of the national parliaments in the European Union, Treaty of Amsterdam, Official Journal C 340, 10 November 1997. 19 Protocol on the role of the national parliaments in the European Union, Treaty of Amsterdam, Official Journal C 340, 10 November 1997. 20 ‘The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities’. 21 There was also a small change concerning decision-making in the Council. The Protocol attached to the Amsterdam Treaty had stated that six weeks shall elapse between a legislative proposal being made available in all languages to the EP and the Council and the date when it is placed on a Council agenda for decision (subject to exceptions on grounds of urgency). The new Protocol reads: ‘A six-week period shall elapse between a draft European legislative act being made

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22 23

24

25

26

27

28

29

30

31 32

33

available to national Parliaments in the official languages of the Union and the date when it is placed on a provisional agenda for the Council for its adoption or for adoption of a position under a legislative procedure. Exceptions shall be possible in cases of urgency, the reasons for which shall be stated in the act or position of the Council. Save in urgent cases for which due reasons have been given, no agreement may be reached on a draft European legislative act during those six weeks. Save in urgent cases for which due reasons have been given, a ten-day period shall elapse between the placing of a draft European legislative act on the provisional agenda for the Council and the adoption of a position.’ Mikko Mattila (2004) ‘Contested decisions: empirical analysis of voting in the European Union Council of Ministers’, European Journal of Political Research, 43, 1: 29–50. The WG on national parliaments had recommended in its final report that ‘Council should legislate with open doors. Policy coordination as well as other activities should also be carried out with open doors as much as possible.’ When addressing the French National Assembly on 3 February 1994, the Foreign Minister Alain Juppé had expressed his hope that national parliaments would be empowered to challenge EU laws on the grounds that they violated the subsidiarity principle. While many of the proposals calling for a chamber of national MPs had argued that such a body should have a role in monitoring the compliance of EU legislation with subsidiarity, the kind of mechanism that emerged during the Convention was by and large a novelty. See Berthold Rittberger (2005) Building Europe’s Parliament: Democratic Representation Beyond the Nation-State (Oxford: Oxford University Press), pp. 191, 196. Adapted from Andreas Maurer and Daniela Kietz (2004) ‘Die neuen Rechte der nationalen Parlamente: Umsetzungsprobleme und Empfehlungen’, SWP Diskussionspapier (Berlin), pp. 3–4; and Donnelly and Hoffmann, op. cit., p. 2. In the Protocol on Subsidiarity included in the Amsterdam Treaty, the Commission was obliged to carry out wide internal and external consultations before publishing a legislative proposal, to justify each initiative in the preambles of its documents, and to ensure that financial and administrative impacts of the initiatives are kept to a minimum. National legislatures can not issue opinions on whether the initiative infringes the subsidiarity principle after the six weeks have elapsed. Thus parliaments can not act if the Council or the EP or the Conciliation Committee subsequently amends the initiative in such a way as to raise concerns about it violating the subsidiarity principle. However, it is probable that this will not constitute a serious problem. Moreover, according to the Protocol the Commission is only required to give ‘reasons’ for its decision. A more stringent wording – for example, with the Commission required to give detailed reasons for its decision – would have provided a stronger incentive for the Commission not to abuse its powers. ECJ has at least once ruled in such a case: the German government commenced an action on behalf of the Bundestag which believed that the EU did not have the competence to introduce the Tobacco Advertising Directive (Case C-376/98 Germany v. European Parliament and Council (Tobacco Advertising Directive) [2000] ECR I-8419). I am grateful to Adam Cygan for pointing this out to me and for providing me information on the other legal aspects of the ‘early warning system’. This was also the main problem with the proposal (that was discussed in the Convention) of including representatives of national parliaments in national delegations when the Council acts in legislative capacity. Rizzuto, op. cit., p. 2 Fredrik Langdal (2003) ‘Nationalla parlament och beslutsfattande på europeisk nivå’, Sieps Report, p.12 (Stockholm: Sieps). However, it is the Commission that publishes the initiative. Hence there is also the possibility that if the government does not agree with the actual policy contents of the initiative, and finds itself on the losing side in the Council, it will ask the parliament to contest the initiative on the grounds of subsidiarity. Langdal, op. cit., p. 37; and Anna Vergés Bausili (2002) ‘Rethinking the methods of dividing and exercising powers in the EU: reforming subsidiarity and national parliaments’, Jean Monnet Working Paper 9/02 (New York: NYU School of Law), p. 16.

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34 Donnelly and Hoffmann, op. cit., p. 3. 35 COSAC agreed in its meeting in The Hague in November 2004 to conduct a ‘pilot project’ on the third railway package in order to assess how the ‘early warning system’ might work in practice. Most parliaments took part in the project, with the national delegations reporting on the results in the COSAC meeting held in Luxembourg in May 2005. See Philipp Kiiver (2006) The National Parliaments in the European Union – A Critical View on EU Constitution-Building (The Hague: Kluwer Law International), pp. 158–61, and the information available at www.cosac.org/en/ info/earlywarning/pilotproject/. Interestingly, almost all parliaments complained that the sixweek period was too short to carry out an in-depth scrutiny of the proposal. 36 An amendment discussed in the Convention proposed a collective right of veto to national parliaments: if 2/3 of parliaments rejected a proposal on the grounds of subsidiarity principle, then the Commission would have been forced to withdraw it. Langdal, op. cit., p. 27. 37 Rittberger, op.cit., pp. 191–2. 38 Article 11 (3) of the Constitutional Treaty states that ‘Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level’. 39 There appears to be broad consensus, also among national parliamentarians, that the overwhelming majority of Commission’s legislative proposals are not problematic in terms of the subsidiarity principle. 40 Vergés Bausili, op. cit., p. 16. 41 See for example House of Commons (2002) Democracy and Accountability in the EU and the Role of National Parliaments, European Scrutiny Committee, 33rd Report of Session 2001/02, 21 June. 42 See House of Lords (2001) A Second Parliamentary Chamber for Europe: An Unreal Solution to Some Real Problems, Seventh Report, by the Select Committee Appointed to Consider European Union Documents and Other Matters Relating to the European Union, 27 November. 43 However, it must be emphasized that the Summits are preceded by lengthy negotiations between sectoral ministers and civil servants from the member states. The European Council therefore actually ‘decides’ (or debates) only a minor share of the issues listed in its conclusions. 44 The obvious exceptions could be major events, such as terrorist attacks or natural disasters that occur after the agendas have been published and require action from the European Council. 45 The current system of the rotating Council Presidency has made the situation even worse by introducing an element of further unpredictability and discontinuity into the work of the Union. The Presidencies tend to produce a peak of activity towards the end of each six-month period (in June and in December) as there is a pressure to reach agreement before handing the Presidency over to another member state. A further problem is that, particularly in June, the European Council convenes at a time when parliaments in some countries are not in session.

Part II

National parliaments in the ‘old’ European Union

6

The European Union in national parliaments Domestic or foreign policy? A study of Nordic parliamentary systems Hans Hegeland

Introduction: domestic policy and foreign policy The national parliaments of Denmark, Finland and Sweden have a strong role in EU matters compared to many other EU countries, according to a comprehensive investigation of the national parliaments across the old EU15.1 Indeed, many scholars and political analysts hold up the Nordic parliaments as exemplars of best parliamentary practice in respect of their mechanisms of oversight and scrutiny of executive action. This chapter examines how these Nordic parliaments deal with EU matters.2 The starting point is two ideal types (in the sense of Max Weber) of decisionmaking, one for policy-making on domestic issues, and one for policy-making on foreign policy. A traditional perspective within political science is that democracy and democratic institutions function less well in foreign policy matters than in domestic policy.3 Foreign policy decision-making is characterized by limited openness and secrecy is often presented as integral to the protection of the national interest. Foreign policy is determined by the political and bureaucratic elite and does not engage the broad mass of politicians much less the general public. The influence of the parliament is limited and the government can to a large extent decide which issues should be referred to the parliament and in what stage of the process. Foreign policy requires national unity and demands that the major political parties at least try to seek consensus on these issues. This limited openness makes it more difficult to keep politicians accountable. In sharp contrast the ideal type for domestic politics is characterized by the opposite features: a large degree of openness and transparency, for example, and a diverse range of actors with input into decision-making. Information flows tend to be steady and reliable and all members of parliament participate in policy debates and (to different degrees) in making legislation. There are fewer demands for consensus as a goal in itself; political conflicts in the parliament are normal and even essential. In short, the parliament has much more influence than in the foreign policy arena. Empirically, democratic input into foreign policy may work better than the scenario outlined here. Equally not all domestic political systems will permit and encourage a pluralist type of policy-making.4 But crucially as more issues are dealt with at the regional, international, and global levels the

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Table 6.1 The five aspects and the two ideal types. Aspect

Domestic Policy

Foreign Policy

Information and openness

Large

Small

Participation

All MPs

Elite

Influence

Large

Small

Demands for consensus

Limited

Large

Accountability

Yes

Difficult

particularistic elements of domestic polities may impact in important ways on foreign policy-making. At the same time the increasing internationalization of policy-making may lead to a less well functioning democracy in areas which earlier were dealt with at the national level. Different scholars have had different views on which of these developments are most likely, but the assumption that democracy will suffer as the decision-making process grows more internationalized seems to be the dominant one.5 Table 6.1 presents an analysis of the two ideal types and examines them under five different headings. The question which this chapter considers is which one of these two ideal types the handling of EU matters in the Nordic parliaments resembles most.6 On the one hand, EU matters are foreign policy in the sense that they are subject to negotiations between the member states (with the European Parliament (EP) as a co-decision maker in some cases), where the governments represent their states. On the other hand, EU matters increasingly bear upon domestic policy and concern areas where national parliaments previously made the decisions. Thus, it is not obvious how national parliaments can be expected to handle EU matters. The aim here is to examine how these matters really are dealt with in the Nordic parliaments and thereby say something about how the EU has effected the forms of governance in the Nordic countries.7 Developments in Norway are also discussed in the final section to provide a broader comparative and regional perspective. The analysis should give an answer to the question whether the role of the parliament is more similar to the domestic or foreign policy model. At the same time the key differences between the three countries will be demonstrated. The structure of the chapter revolves around the five aspects of the ideal types – information and openness, participation, influence, demands for consensus, accountability – presented above.

Information and openness The limited openness in foreign policy is a classical problem. International cooperation allegedly implies that governments gain control over information while parliaments lose control.8 On the other hand, the growing internationalization of decision-making may broaden the supply of ideas and information.9 Contacts with the EP in particular may give national parliaments increased information,

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independent of governments. In Sweden the government should, according to the Instrument of Government, keep the parliament, the Riksdag, continuously informed concerning developments within the framework of European Union cooperation (Ch. 10, art. 6). The government should inform the parliament of its position regarding legislative proposals put forward by the Commission, which it deems significant. The government should also, in explanatory memoranda, give an account for how Swedish rules are affected by Commission’s proposals. Green papers, White papers and communications regarding new important EU rules should also be presented in explanatory memoranda. According to the Danish EU accession law the government should inform the European Affairs Committee (EAC) about draft European laws which are directly applicable in Denmark or which demand participation by the parliament, the Folketing, to be realized (accession law § 6, part 2). According to the present guidelines, which can be found in the reports by the (EAC), Commission’s proposals and other important documents should be sent to the EAC as soon as they have been translated into Danish. The government should present explanatory memoranda for all new draft directives, all new Green and White papers and other draft legal acts, which the government deems important. The explanatory memoranda describe the Commission proposals and the discussions in the Council and the EP but do not say anything about the view of the government. According to the Finnish constitution the parliament, the Eduskunta, participates in the national preparation of decisions made in the EU. The government should without delay, send the parliament the EU proposals which otherwise, according to the constitution, should have fallen within the remit of the parliament. These matters are called U-matters.10 The government should send a piece of written communication with the EU document. In the communication on the U-matter the government should describe the proposal and give an account of its view. Information prior to the Council meetings falls into the category of E-matters, which also comprise documents such as Green papers, White papers, and communications from the Commission.11

Flow of information in practice As the previous section demonstrated the rules governing the governments’ obligation to inform are applied in all three countries in such a way that each parliament receives the EU legislative proposals as well as the Commission’s consultation documents (e.g. Green and White papers). These documents are commented on in writing by the governments. The selection criteria for comments by the government vary, however, among the parliaments with Finland employing the most strict and sharp criteria. It seems clear that explanatory memoranda constitute an essential part of the information flow from the governments about proposals and documents from the Commission in the COM-series. The number of explanatory memoranda is, however, not the same in the three countries. Of the approximately 750 COM documents which

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were presented in 1999, according to Boelt Møller and Nielsen, 140 were subject to explanatory memoranda from the Danish government. The Swedish government submitted 89 explanatory memoranda and the Finnish government 83 corresponding reports about these COM documents. Since many documents in the COM series concern technical matters it is not surprising that many of the documents are not subject to memoranda.12 The Danish parliament received thus the highest number of documents, but it is not necessarily advantageous to receive that many documents. The Danish EAC stated at the beginning of 1999 that it wanted fewer but better documents to be supplied by the government. The Committee also argued that the information should concentrate on essentials and possible political problems in a Danish context.13 In a questionnaire a Swedish MP answered the question whether the written information was enough as follows: ‘Yes, we receive so terribly many papers!’14 Subsequently, however, and largely in response to such reactions from MPs, the explanatory memoranda in Sweden are now submitted only to the relevant standing committee and the EAC and not to all 349 MPs as was the case during the period 1997–2000. Even if the Danish Folketing receives the highest number of memoranda there are some cases where the Swedish and Finnish parliaments get information about issues which are not the subject of memoranda in Denmark. Boelt Møller and Nielsen assert that there seem to be some elements of chance when it comes to what issues the parliaments are informed of.15 The Swedish Riksdag receives on average 100–150 explanatory memoranda during each parliamentary session (which may concern matters other than COM documents). In an analysis from 1997 it was shown that only in approximately one-third of the explanatory memoranda were the economic consequences of the legislative proposals shown, which the guidelines demanded. Other (non-economic) elements, however, did feature regularly in the explanatory memoranda. Comparing Sweden with Finland it seemed clear that the Finnish reports in U-matters contained significantly better information. Another analysis of the Swedish explanatory memoranda from 1998 showed that the memoranda by and large fulfilled the guidelines set down for them. Thus, compared to the analysis in 1997 the quality of information provided in the memoranda had increased. The most important change was that the view of the government was more frequently set out. It seemed clear, however, that the Swedish preparation process left considerable room for improvement.16

Timing of information National parliaments tend to become involved late in foreign policy processes, when important issues may already have been settled. Normatively speaking it is important to be active in as early a stage of the legislative cycle as possible in order to be able to exercise influence in the EU. Thus, national parliaments need early information, preferably as early as they normally receive information on domestic issues and proposed domestic legislation. In Sweden it is decreed that the explanatory memoranda should be delivered to the parliament no later than

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five weeks after the Commission presents its proposal. In Finland the memoranda should be sent to the parliament ‘without delay;’ at the time of adopting this rule this was interpreted to mean that normally a report should be sent to the parliament within a few weeks.17 In Denmark the time limits for the delivery of memoranda have changed: 1994 it was ‘as soon as possible;’ in 1996 this changed to ten weeks; in 1999 to eight weeks; and in 2001 this became ‘if possible’ within four weeks.18 In a comparison concerning the timing of the arrival of memoranda in parliament Boelt Møller and Nielsen found that the process was fastest in Finland, Denmark followed in second place, and Sweden brought up the rear. The median for the number of days between the presentation by the Commission of the document and the date when the corresponding explanatory memoranda arrived to the parliament was 50 days in Finland, 61 days in Denmark and 66 days in Sweden. If the analysis is limited to the 16 Commission proposals during 1999, for example, where data are available for all three countries, the ranking is the same: fastest in Finland, thereafter Denmark and finally Sweden. Another inquiry about Sweden and Finland concerning 1998 showed, however, that even if separate documents arrived at different points of time there were no systematic differences.19 In sum there seems to be room for improvement in all three countries.

Openness and transparency In foreign policy as we have seen the degree of openness is normally quite limited. When it comes to EU matters all three countries publish material on their parliament’s website. The Swedish EAC normally deliberates with the government behind closed doors. However, deliberations with the prime minister before meetings in the European Council are public. The Committee may also arrange public hearings to gather information. Stenographic records are taken during the deliberations with the government and they normally become public after two weeks. In approximately one quarter of cases for deliberation something is kept secret, but most of the secret clauses contain only a few words or sentences. These secret parts may concern Swedish fallback positions or the view of other member states on particular issues or negotiations. In approximately two out of three deliberations with the foreign minister before the General Affairs and External Relations Council (GAERC) meetings, however, items remain closed to public scrutiny, which is a higher percentage than for any other Council formation.20 Journalists often ask questions (not only about the EU) to the ministers in connection with the meetings. The Committee submits press releases before and after the meetings (usually via the Internet).21 Almost all of the material concerning the EAC is made public. The meetings of the Finnish Grand Committee – the EAC of the parliament – are similarly held behind closed doors. The documents that have been discussed at the meeting and the minutes (not verbatim) become public as soon as the minutes have been confirmed. The Grand Committee may however, at the request of the

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government, decide that some information should remain secret, which could be the case when it comes to negotiation tactics and the negotiation positions of other member states. After each meeting in the Grand Committee a press release is published, e.g. at the website of the Finnish parliament.22 The EAC in the Danish Folketing meets, as other committees in the Folketinget, behind closed doors, but it is the committee characterized by most openness.23 Journalists sit outside the Committee meeting room and cover the ministers when they leave the room. Since 1984 stenographic records have been taken at the meetings. The spokespersons of the political parties receive a copy of the records, while the other members of the Committee may read the records at the secretariat of the Committee. In order not to damage Danish negotiating positions within the Council the records are otherwise kept secret. Ninety-five per cent of the documents and memoranda that the EAC receives are, however, made available to the public.24 Summing up, it is primarily because of the availability of the stenographic records that the Swedish EAC can be considered somewhat more open than its Danish and Finnish counterparts. At the same time some parts of the stenographic records are held back due to the delicacy of some foreign affairs issues and the perceived need to protect the national interest. In all three countries, however, the trend has been toward more openness and transparency during the last decade. Information from the European Parliament The contacts with the Members of the European Parliament (MEPs) in all the countries mainly operate through the political parties. The parties thus have regular contact with their MEPs and the parties value these contacts. The process also works in reverse in that MEPs can access material from the activities in the respective EACs.25 There are normally meetings in all three countries once or twice every year between the national parliament’s EAC and national MEPs. Danish MEPs may, since 1999, put questions to Danish ministers through the parliamentary committee system, including the EAC (all MPs have this right). This opportunity has only been used a few times, however. MEPs have also participated in open hearings in Denmark and Sweden. Interparliamentary connections and a presence in Brussels have also been deemed necessary in recent years. Since 1990 the Danish Folketing has had a permanent representative in Brussels who covers the EU on behalf of the Folketing. The Finnish parliament also decided to place a permanent representative in the EP since it found that it frequently received information from the government too late to deal adequately with the issues. Since 1996 the Finnish parliament thus has a staff member in the EP who is tasked with informing the Grand Committee early of legislative proposals and who summarizes issues from a Finnish perspective. The Swedish Riksdag had a staff member in the EP building during the Swedish EU Presidency in spring 200126 and also at the end of the European Convention in 2003. Since 2004 there has been a permanent representative from the Swedish Riksdag in Brussels. The Riksdag would probably not have had any representative in the EP had not Denmark and Finland already maintained a presence there. All of this demonstrates

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the extent to which the Nordic parliaments tend to learn from and emulate each other in developing more robust instruments of oversight and scrutiny in the EU policy-making domain. Comparing and contrasting the approach to transparency in the three countries Putting the three Nordic systems under the spotlight it is deemed vital that all three parliaments receive Commission’s draft legislation and that each government is also required to provide the parliament with important legislative proposals. However, the time limits are not always followed and in all three countries the parliaments have complained that the information from the government is late and incomplete. These viewpoints have not been presented in vain – the information flows to all three parliaments have improved significantly over time. There are, however, some differences between the countries. In Sweden and Denmark the main criterion for determining which Commission proposals should be subject to explanatory memoranda is simply that ‘more important’ proposals should be explained in memoranda from the government. In Finland the need to distinguish U-matters is apparent if that issue, according to the constitution, falls within the remit of the parliament. This means that in Finland there is a more objective and substantive criterion to select which issues should be subject to parliamentary consideration. The room for discretionary judgements by the government is therefore more limited than in Sweden and Denmark. The greater openness of the Swedish EAC influences the conditions for parliamentary deliberation in different ways. The Committee stressed in a report in 1996 that a condition for meaningful deliberation with the government is that the engagement can be held under confidential forms and that the Riksdag could not otherwise exercise the intended influence. The stenographic records had from that point of view had negative consequences for the work of the Committee and the government had sometimes been reluctant to provide confidential information. The free exchange of views had also been restrained, according to the Committee.27 The Foreign Minister has, however, said that she is totally open in the Committee and argues that the foreign affairs secrecy covers sensitive information. In 2004 the EAC asked to have the possibility to have public meetings for all kinds of deliberations. The three parliaments have some additional sources of information such as newspapers, think tanks and the Internet. The parliaments also collect information, independently from the governments, through contacts with MEPs within the political parties. The MEPs have not, however, been integrated into the work of the three parliaments to any large degree. To sum up: all three countries have regular channels which provide information from their governments, but the flow of information does not function without problems. The meetings in the EACs are more open than the meetings in the standing committees but full openness is not the case in any of the three countries.

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Compared to many other EU member states, however, each of the three countries and parliaments considered here enjoys quite substantial access to information on EU issues within their domestic settings.

Participation If the relative balance between the demand for and supply of legislative and general political information constitutes one important condition for substantive parliamentary control of the executive, then outright participation in decisionmaking represents a second key variable. And while parliamentary participation in foreign policy is characterized by a limited élite in politics and bureaucracy it is clear that some parliaments have been able to carve out avenues of participation hitherto denied them in traditional models of executive–legislative relations. For example, Brothén shows that it is an élite in parliaments which has most international contacts.28 As is shown in this section, the three Nordic parliaments all demonstrate both traditional and novel modes of participation within EU affairs. Perhaps the most important arena of parliamentary participation is that of the parliamentary committee system. The EU documents discussed above are distributed within the Nordic parliaments to the relevant standing committee(s) as well as to the EACs. Without going into any detail it should be said that the allocation between the different standing committees by and large reflects the extent of the supranational EU co-operation in the different issue areas. This means that committees which deal with agriculture, communications, and commercial policy receive substantially more EU documents than the average sectoral committees. Committees in areas such as culture, education, and housing do not receive many EU documents simply by virtue of their being marginal to modes of EU collective governance. This classification of different committees and policy areas is also reflected in the number of private member’s bills and committee reports which incorporate EU policy in the various areas.29 Another aspect of participation concerns the composition of the EACs. The Danish EAC has (as other committees in the Danish parliament) 17 full members and 11 deputies. The political parties send their more influential members to the Committee: often committee chairpersons and former ministers, at any rate senior ranking parliamentarians. The EAC has in many ways become a parliament in miniature. In the Danish parliament MPs often sit on several committees and almost all members of the EAC are also members of three or four other committees. These MPs consider the EU Affairs Committee, by a large margin, to be the most important committee within the parliament. The EAC meets more frequently and the attendance is higher than for any other committee.30 The Grand Committee in the Finnish parliament has 25 full members and 13 deputies. Other committees have 17 members and 9 deputies with the exception of the Finance committee, which has 21 members and 19 deputies. The MP from Åland also has a right to attend the meetings of the Grand Committee. The Grand Committee, like its counterpart in Denmark, attracts prominent members. After

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the elections in 1995 and 1999 chairpersons of five standing committees and representatives of the leadership from the three largest party groups were members of the Grand Committee.31 The Swedish EAC has 17 full members and 33 deputies. Uniquely the smaller parties within the Riksdag have a right to extra deputies. The argument for extra deputies is to increase the number of MPs who are engaged in the work of the EAC.32 Each political party has distributed its seats in the EU Affairs Committee among its MPs in order to cover different areas. All 16 standing committees are thus represented in the EU Affairs Committee. The committees which have most EU related matters, such as agriculture, have representatives from most political parties in the EAC. The status of the Swedish EAC has changed over time. From 1995 to 2002 the members of the Committee were more senior and more highranking (members of the party groups’ leadership, etc.) than members in the sectoral committees. After 2002, however, the members of the EAC rank as the average of all committees on these two indices. To sum up, more MPs take part in the EU Affairs Committees than in any single standing committee, and senior MPs are members of these committees. EU matters could be thus said to be handled by a broad élite.

Influence If participation in decision-making represents a vital arm of parliamentary activity it is obvious that unless that also translates into real influence on the decision-making process members of parliament outside the executive branch cannot have a significant impact on policy outcomes. Notwithstanding the trend toward the strengthening of executive authority across Europe over the past thirty years it is clear that, at least in domestic policy national parliaments formally are charged with responsibility for making policy. Governments, as we have seen, tend to have a stronger position in foreign policy while the parliaments play a weaker role there. But for our purposes we need to consider how exactly the type of participation mentioned in the previous section does translate into parliamentary control over EU decision-making. Exploring the pathways of influence two important channels of parliamentary influence are identified and discussed in this section, namely through the standing (specialized) committees and the EACs. In addition, the processing of Green and White Papers is discussed as a special way of influencing the EU’s policy process. EU matters in standing committees The standing committees in the Swedish parliament should, according to the Riksdag Act ( Ch.10 §3), follow EU matters in their areas. However, there is no formal requirement that the committees shall prepare and scrutinize these questions, which is different from normal Riksdag matters. The committees may submit reports in writing to the EAC, but that has only happened six times in total

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over the years. The main way for committee influence to be exercised is through the submission of both general and specialized reports to the chamber. The committees could thus ask the chamber to make a resolution stating how the government should act in a certain way in the EU. There are approximately 100 resolutions every parliamentary year. On average there are five resolutions every year on how the government should pursue a certain issue in the EU. Other resolutions may concern how EU matters should be dealt with at the national level, for instance how different forms of agricultural and regional support should be organized. The number of resolutions in EU matters must however be considered to be fairly low relative to the total. In Finland the Speaker sends the EU document to the Grand Committee or Foreign Affairs Committee, depending on the nature of the issue. The Speaker decides at the same time which committee(s) should send a report in writing to the Grand Committee or Foreign Affairs Committee. The committees gather more information from, e.g. interest groups, unless the matter is purely technical and politically insignificant. The standing committees send a report to the Grand Committee, which brings the views of the parliament to the government.33 This means that in Finland the forms of contact between the standing committees and the Grand Committee are institutionalized. It is compulsory for the standing committees to deliver reports in U-matters while they decide themselves whether they want to report on E-matters. The standing committees submit on average no less than almost 150 reports every year. A brief overview of the reports from the Finnish committees shows that the committees make independent assessments of the EU proposals. Often the committees say that they ‘respectfully’ share the views of the government, but it also happens that the committees add standpoints that the government should take into account in the forthcoming process. A closer look at more than 40 reports to the Grand Committee in U-matters in 1998 showed that in 27 cases the standing committee shared the view of the government. In nine cases the committee stressed something which was in line with what the government had said in its memorandum to the parliament, although the committee wanted to be clearer and put emphasis on particular aspects. In six cases one could say that the committee had at least to some degree another view than the government. Boelt Møller and Nielsen found in a survey of all 118 reports in 1999 that in approximately half of the reports the committees fully shared the views of the government. In the other cases the committees made some kind of recommendations.34 In U-matters the Grand Committee states its view in an extract from its minutes. The view is then communicated to the government. In a survey of 42 cases only two cases were found where the view of the Grand Committee differed from the view of the standing committees. Confirming such a finding another assessment finds that the Grand Committee follows the views of the standing committees in 90 per cent of cases. When more than one committee send reports, the Grand Committee summarizes and mediates between the different viewpoints.35 In Denmark the role of the EAC has been stressed more than in Sweden and Finland, but the role of the standing committees has also been emphasized several

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times in respect of parliament exercising influence on the executive and decisionmaking in general. Common to the changes in parliamentary working methods over the years has been an effort to balance between the EAC and the standing committees. The standing committees have themselves been given the power to decide what they should do with the information they receive. That means that it is not compulsory for the standing committees to work with EU matters, as it is in Finland. The observation in the Folketing is that the standing committees should be more involved in EU matters, but finding methods for doing so has not been easy.36 In a comparative perspective this observation is of particular interest. Sweden chose the same model as Denmark outlined in 1994 (in one of the attempts to involve the standing committees more) and which Denmark thereafter has found was not good enough.37 Also in Sweden several evaluations have found that the standing committees have not been sufficiently involved; these findings elicited proposals for changes in the working methods.38 But it remains the case in both Denmark and Sweden that the standing committees decide on their own whether they want to deal with separate EU matters. The standing committees in the Danish Folketing may submit reports in writing to the EAC. Fifteen reports during 1997/98–2000/01 were submitted, but twelve of them came from the Environmental committee. Most political parties merely say in the reports that they will give an account of their view when the matter is dealt with in the EAC.39 In an evaluation in the Swedish Riksdag the Finnish model – where the standing committees are obliged to submit reports to the Grand Committee in EU matters – was carefully studied. The Finnish model was, however, rejected. The reason was that the formal handling by the standing committees would most often lead to an unnecessary increase in the volume and flow of paper. There would be a risk that resources would be spent on less important matters. The right of MPs to present private member’s bills is also much more limited in Finland than in Sweden.40 Similar arguments have been put forward in Denmark against increased formalization. If one political party says in a standing committee that it supports the views of the minister, and another party says that it will present its view in the EAC, that report does not have any practical value. It would be valuable if the standing committees and the political parties expressed themselves on the substantial contents of a proposal, based on knowledge of the field and political outlook. The Danish EAC would, however, like to have more information on how the standing committees have worked with the issues.41 Also in Sweden the importance that the EAC takes account of the views from the standing committees is underlined.42 In practice the views of the standing committees are conveyed through MPs who are members both of standing committees and the EACs. EACs If the standing committees represent a more traditional tool for achieving oversight and a degree of parliamentary control over governmental action, then more recently, and as the EU constitutional process has accelerated, the EACs have been

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delegated more responsibility and power within the three Nordic parliaments. All three EACs deliberate with the government on the Friday before the Council meetings in the following week, which means that there are some 40–50 committee meetings every year. The members of the EACs receive the Council agenda, background documents and comments in writing by the government. At the committee meetings the representatives of the government present the issues, and the MPs may make their views known. The chairperson summarizes the view of the EAC, which in most cases means that the government receives support for its negotiating position.43 The Danish pattern has clearly set the standard for both Sweden and Finland (and EACs in other countries as well) when it comes to the procedures for handling issues due on the agenda at the following week’s Council meetings. An advantage is that all Council meetings are covered and that the members gain a broad overview over EU matters in all areas. The governments know in advance which issues will be discussed in the EACs and may adjust their views in advance in order to avoid contestation and/or outright opposition.44 The Danish EAC is sometimes considered to have a uniquely strong role, but it must be stressed that its strength is linked to the relatively weak domestic position of Danish governments. In the case of a Danish majority government the influence of the Danish EAC is considered to be much more limited. In parliamentary systems such as the Nordic ones it is natural that a majority in the parliament most often supports the government. Thus, in all three EACs it is uncommon that the government meets opposition from a majority: an assessment, built on several sources, is that it could happen once, twice or a few times a year. Over longer time periods it probably happens most often in Denmark and least often in Finland, where the matters have been handled earlier through written reports from the standing committees. The mandate from the EACs in all three countries is politically but not legally binding. According to my view, to make it legally binding it has to be clearly stated in a legal text that it is binding. There is such a legal obligation for the Swedish government to follow decisions made by the parliament on domestic laws and the state budget, but for EU matters there is no such legal regulation. Neither Denmark nor Finland have such a legal regulation. It should, however, be said that in Denmark there is another interpretation where constitutional praxis is said to create a development where something becomes legally binding without support in a legal text.45 Such a development could be understood in light of the fact that the Danish constitution is changed very rarely, but does not change the fact that there is no legal act saying that the mandate is binding. Thus, behavioural norms evolving out of customary parliamentary practice have to some extent become embedded in EU policy-making patterns in Denmark. It is by no means impossible to imagine such a legal regulation: in Austria there is a rule in the constitution about the obligation of the government to follow decisions made by the parliament in EU matters. This, by the way, does not at all guarantee that the parliament de facto has a strong role.46 To sum up: the Nordic parliaments exercise less influence in EU matters than in traditional domestic policy, where the issues are subject to scrutiny almost automatically, and where well practiced routines for handling issues in committees and

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plenary session are employed. Finland, however, has a system which guarantees that EU matters are dealt with by the standing committees. The Danish EAC communicates directly with the Commission, without interference by the government, in a way that does not occur in Finland and Sweden (see the sub-section below, on Green and White Papers). The EACs cover all issues in the Council through oral deliberations with the government: it is uncommon that the government meets a majority with another view than the government. Green and White papers Green and White papers and other communications from the Commission are handled in a specific way in the Danish Folketing. The government must submit an explanatory memorandum in such time that the Folketing may handle the issue before the time limit for comments have expired. The EAC and the relevant standing committee then arrange a public hearing. The spokespersons of the political parties at the hearing discuss whether they can reach unanimity, or at least a broad majority, about a statement. If that is the case a draft is written and discussed both in the standing committee and the EAC. If there is a majority in each committee a statement on behalf of the Folketing is sent to the Commission by the chair of the EAC. There have been minority reports attached to the statement, although that is uncommon. The government may also send an answer to the Commission. According to the EAC both itself and the standing committees are generally satisfied with the way Green and White papers are handled.47 This system, where the Folketing communicates directly with the Commission, is interesting. The Swedish Riksdag has stressed that the basis for the activities of its committees in EU matters is that the government is the counterpart. In matters where there is a clear Swedish point of view the committees may be in contact with EU institutions to support Swedish positions, but in the same breath it is underlined that it is of course the Swedish government which represents Sweden in EUlevel negotiations. As examples of questions where there is generally Swedish unity the demands on increased European openness and the fight against narcotics consistently arise. In issues where no such Swedish view can easily be depicted the committees should not in contacts with the EU act in favour of any particular view.48 The question is whether the Swedish parliament has tied itself down unnecessarily. It is certainly true that it is the government which, according to the Swedish constitution and international law, represents Sweden in relations with other states and international organizations. At the same time states are not any longer the only actors in the international arena. Multi-level governance theories about the EU indicate that there are many levels to be active on, and many international relations are not between states as such but increasingly also involve a plurality of local, regional and global actors. The Swedish parliament has stated that the co-operation between parliament and government should take place in such a way that Swedish interests are satisfied in the best possible way.49 Together with an ambition for national unity and continuity of views, the government thereby gains some advantage over the parliament. In terms of theories of power

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one could say that it is the parliament which is the regime-taker and the government the regime-maker and not the other way around. One way for the parliament to change this relationship and have the government adjust its view toward that of the parliament (where there exists conflict) would be to make statements and contacts directly to the EU institutions. Then the government, in its relations with the EU, would have to decide whether it would like to deviate from the views of the parliament. The Danish example shows that such a model is not impossible, although it has not been used for anything other than Green and White papers. The new subsidiarity control in the Constitutional Treaty50 points in that direction, though.

Demands for consensus It is normally argued that foreign policy requires a considerable degree of consensus among the major political actors in a state. The national interest and national security imply that the broadest majority is sought on issues which potentially impinge on national sovereignty and national interests. On the other hand, issues that used to be dealt with at the domestic level – where there is normally a higher level of conflict – are now routinely discussed and negotiated away from the domestic arena at the EU level. This section poses several questions about consensus. What sorts of demands for consensus exist within the realm of EU affairs? How do such demands compare with demands made in traditional foreign policy spheres? And how does each parliament deal with these demands as they arise on individual issues? In the Danish EAC only if the spokespersons for political parties that represent more than 90 seats together (i.e. a majority of the 179 seats in the Folketing) have spoken against the government is there a majority against the government. A party spokesperson who does not say anything or is not present is considered to have accepted the view of the government. Since October 2000 the EAC presents socalled decision reports for items where the government has presented a negotiation strategy. An analysis of the 253 issues (at 98 Council meetings) where the government had presented a negotiation strategy up to July 2002 showed that in 44 per cent of cases there was consensus and in 56 per cent at least one political party disagreed with the government. It should immediately be said that most often it was the Eurosceptical Unity list (Enhedslisten) which opposed the government. Thereafter it was the also Eurosceptical Danish People’s Party (Dansk Folkeparti) and the Socialist People’s Party (Socialistisk Folkeparti) which most often disagreed with the government. The Liberals (Venstre), the Conservative Party (Det Konservative Folkeparti) and the Christian Democrats (Kristeligt Folkeparti) opposed the government only in 11 issues during their time in opposition. The Social democrats (Socialdemokratiet) only opposed the government in one instance. Several other political parties also disagreed with the government on that particular issue (national support to the wine sector in France and Italy).51 In Finland one tries to reach parliamentary, and thereby national, unity or at least broad consensus, which can be used to exercise influence in the Council.52 It is

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very unusual that there are any minority reports in the statements from the standing committees to the Grand Committee in EU matters. Boelt Møller and Nielsen found that out of more than 100 statements there were minority reports only in three cases.53 In Sweden it is less common to find minority reports when the standing committees make proposals in EU matters. When the EU is mentioned in the formal decision (typically just one sentence) minority reports are less common than in other cases. The two Eurosceptical parties, the Left Party and the Green Party, are the only parties that present minority reports more often in EU matters than in other issues. Further, the level of conflict in the EAC is lower than in the standing committees.54 If a political party does not say anything in the EAC that is understood as agreement with the view of the government. In summary there is more consensus in the Nordic parliaments on EU matters than on domestic matters, which is what one might expect of issue areas which at least traverse the boundaries of foreign policy and which previously were thought of exclusively as foreign policy matters. In a research project on the Nordic democracies and the EU it was shown that the goal of the national procedures for EU matters was to create policies reflecting broad compromises.55 The ambition to reach consensus takes place mainly on conditions set by the governments. The governments present a proposal for a national standpoint, which remain the same unless there is a majority mobilized against it. Passivity is understood as support for the government. However, it should be said a major reason for this consensus is that many EU matters concern issues that are fairly technical and thus relatively unpoliticized. Issues which are at the core of the political debate – such as the role of the welfare state and taxes and redistribution – are mainly decided at the national level.

Accountability It is more difficult to keep the politicians accountable in foreign policy than in domestic policy since decision-making tends to be more opaque. Further, the governments may also refer to other actors and claim that in the actual situation it was in the interest of the nation to act in a way that the parliament may not have accepted in advance. The governments may also choose what events they report about afterwards and hence be rather selective in what they choose to report. This section focuses on how such ex post accountability mechanisms operate in the handling of EU matters in the three Nordic parliaments. In Finland the Grand Committee receives a written report from the government after each Council meeting. The report is put on the agenda at the next meeting of the Grand Committee where the relevant minister participates. The MPs may ask questions about the Council meeting and its decisions. If a minister finds that he must deviate from what the Grand Committee has said he must be prepared to explain that for the Committee.56 The Danish government also submits its own reports from the Council meetings to the EAC. In addition, the EAC collects the press releases from the Council. The Committee may ask a written question to the government in order to gather more information. Originally, the Danish ministers

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met with the EAC also after the Council meeting, but now that happens only once or twice a year. In Sweden the Riksdag Act (Ch. 10, §1) states since September 2001 that the government should explicitly account for its actions in the EU to the Riksdag. The government did certainly provide information and justification for action before that, but the regulation was a way to stress the importance of those accounts. This obligation is fulfilled, for example, through an annual report on developments in the EU, submitted to the Riksdag, where the government presents how Swedish views have been pursued in the Union. Denmark and Finland do not have such an annual comprehensive reporting procedure – the Swedish report is about 400 pages long – about developments in the EU. When it comes to reports after the Council meetings, the Swedish EAC also receives a written report from the government. The Finnish model has inspired the EAC and each deliberation with a minister starts, since October 1999, with an oral report about the last Council meeting. The written reports have become better since this model was introduced. The fact that the minister may have to answer questions about what happened at the Council meeting probably means that there are more incentives for the Government Office to cover more in the written reports. A systematic analysis between Swedish and Danish reports between 1995 and 1998 showed that the Swedish reports generally contained more information on the different agenda items than the Danish ones. The quality of the Swedish reports has increased since the first years of Swedish EU membership. To a large extent the Swedish position at the Council meeting and the forthcoming handling of the issue are presented while the corresponding information is not included in the Danish reports. In all three countries there are thus routines for systematic reporting concerning how the government has acted at Council meetings in Brussels and elsewhere.

Conclusion: a third kind of parliamentary system? This chapter began by juxtaposing the two ideal types of domestic and foreign policy and the attendant modes of decision-making which accompany each. EU matters are in some senses a peculiarity in terms of the traditional separation of the two spheres of political life. Increasingly it is extremely difficult to disentangle what is ‘European’ or ‘EU’ from matters purely domestic. Given the more robust modes of oversight employed by the Nordic parliaments we need to ask whether this is leading to a new kind of parliamentary system which straddles the divide between the domestic and foreign. This concluding section answers the question through analysing the differences between the three Nordic parliaments, which are also summarized in Table 6.2. Turning first to information rights, it seems clear that the Nordic parliaments receive more information on EU matters than on traditional foreign policy issues but the process is still not as open and transparent (and satisfying for MPs) as for domestic policy. The similarities between the three parliaments are by and large striking. However, there is an important difference between Finland, on the one

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Table 6.2 How EU matters are dealt with in Denmark, Finland and Sweden from five aspects. Aspect

EU-matters in Denmark, Finland and Sweden

Information and openness

Routines which may falter

Participation

Broad elite

Influence

The government often gets its way

Demands for consensus

Large

Accountability

Fixed routines, the government main source of information

hand, and Denmark and Sweden on the other. Finland has a clear criterion for choosing issues. The criterion distinguishes issues that the parliament should have decided if Finland had not been a member of the EU. The Finnish parliament covers these issues by making it compulsory for the standing committees to present written reports in these matters. A compulsory written procedure is the case only for formal parliamentary matters in Denmark and Sweden, and not for EU matters. This means that the standing committees in the Danish and Swedish parliaments are less involved than their Finnish counterparts. In Finland, EU matters are dealt with in a way which more resembles traditional domestic policy. Hardly surprising, Finnish MPs are more satisfied with their parliament’s dealing with EU matters than Swedish MPs.57 There also exist some important problems in the distribution of information to both parliamentarians and committees. The Nordic parliaments have fixed routines for information on what the governments have done in the EU, but the governments themselves are the main source for the information. There have been complaints in all three countries that key information has been presented late and that it has not been comprehensive enough for parliamentarians to do their job. The influence of the Nordic parliaments, in the sense that they can legitimately and explicitly expect to change the position of the government, on EU issues is limited. However, the regular contact, not least between the EACs and the three governments, implies that the governments know that they must clear their positions with the parliament no later than before the Council meetings. Hence the Nordic parliaments have more influence on EU matters than in traditional foreign policy. The governments normally meet less opposition in EU matters than in domestic policy, and there are always demands for consensus on the basis that the national interest demands such. It is obvious that EU matters normally are not dealt with as normal domestic matters where there are strict formal rules, with demands on preparation, open debate in the parliamentary chamber, conflict and broad participation. On the other hand, the parliaments put demands and constraints on the governments. They require information both ex ante and ex post, the EACs cover all meetings in the Council, there is a fairly broad participation in the EACs and the governments must regularly report on events in the EU. These

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mechanisms are more far-reaching than the control mechanisms for traditional foreign policy. Moreover, more MPs participate in the EACs than in other committees and prominent MPs are often members of the EACs in all three countries. Thus, the MPs who participate in EU matters can be described as constituting a broad élite. All of these facts imply that the institutionalization of EU matters has thus increased over time. In sum, the three Nordic parliaments deal with EU matters neither as domestic policy nor as foreign policy. Rather, one can identify what can legitimately be termed a new kind of parliamentary system for EU matters. This means that the parliaments have a weaker role in EU matters than in domestic policy, but a stronger role than one might expect in traditional foreign policy matters. A possible explanation for this is that EU matters are not seen as important as many domestic issues. Much of the political debate on issues such as the welfare state and taxes are still mainly dealt with in the domestic arena.58 Once the EU is focused as a collective entity on taking important decisions, such as at the European Council summits, and Intergovernmental Conferences, the parliaments tend to become much more active.59 To make a fair judgement concerning how EU membership has affected the Nordic parliaments one should ask what the alternative is. The three countries would most likely have had the same position in the European Economic Area (EEA) agreement as Norway and Iceland have today. Hence it is worthwhile to briefly look at the role of the Norwegian parliament, the Stortinget, in the EEA. Trondal and Veggeland summarize the research on the Stortinget and European integration.60 They demonstrate that the Stortinget handles EU/EEA issues as almost exclusively as foreign policy. The EEA committee in the parliament meets the government once a month to discuss EEA matters but the organizational structure implies that the EEA committee – and not the standing committees – takes care of the issues. Parliamentary oversight and control are on the whole lacking. Although the EEA agreement does not cover as much as full EU membership does, Norway has to abide by much of EU legislation. There are certain formal structures for Norway to have an input into EU decisions, but the possibility to exercise influence is doubtless much smaller for a country that is not a member than for the member states.61 It is obvious that the Norwegian parliament receives far less information in EU matters than the parliaments in the EU member states, in spite of the fact that also the Norwegian parliament often has to follow EU decisions.62 The Danish, Swedish and Finnish experience is the opposite one. Finally it should be said that EU membership means that some issues that earlier were decided at the national level are now decided at the EU level. But here the effect of the Common Foreign and Security Policy should be stressed. The Foreign Offices and the Foreign Affairs Committees in Denmark, Finland and Sweden are all very much concerned with EU matters. However, the reason is not that EU matters are foreign policy. Rather, foreign policy has become an EU matter since the member states’ foreign policies to a large extent are pursued through the EU. This means that the national parliaments have increased their insight into traditional foreign policy, among other things through the deliberations with the

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foreign minister every month before the GAERC meetings. The end of the Cold War has certainly contributed to a more open debate on foreign policy, but the EU membership as such has also strengthened the role of the national parliaments in this area.

Notes 1 See for example Andreas Maurer and Wolfgang Wessels (eds) (2001) National Parliaments on Their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos). 2 This chapter builds on my own ongoing research on these matters, participant observation (Sweden) and a number of meetings with staff and MPs in the Danish and Finnish parliaments. The chapter is essentially a summary of my forthcoming PhD thesis on the subject. 3 Cf. for example Ulf Bjereld and Marie Demker (1995) Utrikespolitiken som slagfält: De svenska partierna och utrikesfrågorna (Stockholm: Nerenuis & Santérus förlag), ch. 4; Kjell Goldmann, Sten Berglund and Gunnar Sjöstedt (1986) Democracy and Foreign Policy: The Case of Sweden (Aldershot: Gower); Magnus Jerneck (1996) ‘Democracy and interdependence’, in Lars-Göran Stenelo and Magnus Jerneck (eds), The Bargaining Democracy (Lund: Lund University Press), pp. 147–218. 4 In domestic policy it is of course not self-evident that the parliaments have such a strong role as is implied here. In this chapter there is however no room for further discussions on that important issue. Focus is on EU matters. 5 Cf. Magnus Jerneck (1990) ‘Internationalisering och svensk partidiplomati’, in Göte Hansson and Lars-Göran Stenelo (eds), Makt och internationalisering (Stockholm: Carlssons); Karl Kaiser (1971) ‘Transnational relations as a threat to the democratic process’, International Organization, 25: 706–20. 6 Cf. Sverker Gustavsson (1994) ‘Samhällsvetenskapliga fakultetsnämnden vid Uppsala universitet Remissyttrande över EG-lagsutredningen (SOU 1994:10)’, Ds 1994:69: 59–67; Karl-Oskar Lindgren (2000) ‘EU-medlemskapets inverkan på den svenska parlamentarismen’, Statsvetenskaplig Tidskrift, 103: 193–220. 7 Cf. Karl-Göran Algotsson (2000) Sveriges författning efter EU-anslutningen (Stockholm: SNS). 8 Cf. Jerneck (1996), op. cit., pp. 158–9. 9 Kjell Goldmann (1993) ‘Internationalisering, internationalism och nationell självständighet’, in Björn von Sydow, Gunnar Wallin and Björn Wittrock (eds) Politikens väsen: Idéer och institutioner i den moderna staten: En vänbok till Olof Ruin (Stockholm: Tiden). 10 The letter U in U-matters stems from Union. Niilo Jääskinen and Tiina Kivisaari (1997) ‘Parliamentary scrutiny of European Union affairs in Finland’, in Matti Wiberg (ed.), Trying to make Democracy Work: The Nordic Parliaments and the European Union (Stockholm: Gidlunds/Riksbankens Jubileumsfond), p. 35. 11 The letter E in E-matters stems from the earlier legal ground, the Parliamentary Act §54 e. Now this is regulated in the Constitution §97. 12 Lone Boelt Møller and Jacob G. Nielsen (2001) De nationale parlamenter og europeisk integration – et komparativt studie af EU-beslutningsprocessen i det danske, svenske og finske parlament (Speciale, Institut for Statskundskab, Århus universitet), pp. 126–9. 13 Report from the EU Affairs Committee, 19 February 1999. 14 The Parliamentary Review Commission, memoranda, p. 15. 15 Boelt Møller and Nielsen, op. cit. 16 Hans Hegeland (1999) Riksdagen: Europeiska unionen och demokratin: En studie av riksdagens arbete med EUfrågor (Lund University: Political Science Department). 17 Grand Committee 3/1995. 18 Reports from the EU Affairs Committee. 19 Hegeland (1999), op. cit., pp. 60–2. 20 Cf. Hegeland (1999), op. cit., pp. 109–12. 21 This procedure developed after examination of similar proceedings by the Finnish Grand Committee (the EAC of the Finnish parliament).

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22 Jääskinen and Kivisaari, op. cit., pp. 41, 46; Tapio Raunio (2001) ‘The parliament of Finland: a model case for effective scrutiny?’, in Andreas Maurer and Wolfgang Wessels (eds), National Parliaments on their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos), p. 180. 23 Henrik Jensen (1995) Arenaer eller aktører? En analyse af Folketingets stående udvalg (Frederiksberg: Samfundslitteratur, 1995), pp. 20–1. 24 Introduction to the EU Affairs Committee (2001), pp. 6f.; Finn Laursen (2001) ‘The Danish Folketing and its European Affairs Committee: strong players in the national policy cycle’, in Andreas Maurer and Wolfgang Wessels (eds), National Parliaments on their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos), p. 109. 25 Martin Brothén (1999) ‘Parlamentariker emellan – om kontakter mellan svenska riksdagsledamöter och EU-parlamentariker’, Statsvetenskaplig Tidskrift, 102: 378–95; Hegeland (1999), op. cit., pp. 137– 41; Jørgen Albaek Jensen (1996) ‘Prior parliamentary consent to Danish EU policies’, in Eivind Smith (ed.), National Parliaments as Cornerstones of European Integration (The Hague: Kluwer), pp. 47–8; Jääskinen and Kivisaari, op. cit., p. 45; Raunio, op. cit., p. 194; cf. Magnus Jerneck (1997), ‘De svenska partiernas utlandsförbindelser – från internationalisering till europeisering?’, in Knut Heidar and Lars Svåsand (eds), Partier uten grenser? (Oslo: Tano), pp. 129–66. 26 Hans Hegeland and Karl Magnus Johansson (2001) ‘Ordförandeskapet och riksdagen – borgfreden som höll’, in Jonas Tallberg (ed.), När Europa kom till Sverige: Ordförandeskapet i EU 2001. (Stockholm: SNS). 27 Report 1996/97: KU2, p. 70. 28 Martin Brothén (2002) I kontakt med omvärlden: En bok om riksdagsledamöterna och internationaliseringen (Stockholm: SNS). 29 Hegeland (1999, 2001), op. cit., ; Boelt Møller and Nielsen, op. cit. 30 Jensen, op. cit., pp. 61–2, 108–9, 118–19; Laursen, op. cit., pp. 104f. 31 Parliamentary rules of procedure §8, §36; Raunio, op. cit., pp. 173–98; cf. Jääskinen and Kivisaari, op. cit., p. 35. 32 Proposal 2000/01: RS1, p.135. 33 Parliamentary rules of procedure §30; Jääskinen and Kivisaari, op. cit. 34 Boelt Møller and Nielsen, op. cit., pp. 159–60. 35 Raunio, op. cit., p. 183 36 See Peter Nedergaard (1994) Organiseringen av Den europæskie Union. Bureaukrater i beslutningsprocessen: EU-forvaltingens effektivitet og legitimitet (Köpenhamn: Handelshøjskolens Forlag), pp. 311–14; Niels C. Sidenius, Bjørn Einersen and Jens Adser Sørensen (1997), ‘The European Affairs Committee and Danish European Union politics’, in Matti Wiberg (ed.), Trying to Make Democracy Work: The Nordic Parliaments and the European Union (Stockholm: Gidlunds/Riksbankens Jubileumsfond), pp. 9–28. 37 Cf. Hans Hegeland and Ingvar Mattson (1995), ‘Att få ett ord med i laget – En jämförelse mellan EU-nämnden och Europaudvalget’, Statsvetenskaplig Tidskrift, 95, 4: 435–57. 38 Report 1996/97: KU2; Proposal 1997/98: TK1; Proposal 2000/01: RS1. 39 Boelt Møller and Nielsen, op. cit., pp. 157–8. 40 Proposal 2000/01: RS1, appendix 6, p. 327. 41 Report 19 February 1999, p. 2. 42 Proposal 2000/01: RS1. 43 Raunio, op. cit, p. 183f.: Laursen, op. cit. 44 E.g. Laursen, op. cit., p. 107. 45 Helle Krunke (2001) ‘Folketingets kontrol med den europeiske udenrigs – og sikkerhedspolitik’, Ugeskrift for Retsvaesen, 40, 6: 401–9. 46 See Hans Hegeland and Christine Neuhold (2002) ‘Parliamentary participation in EU affairs in Austria, Finland and Sweden: newcomers with different approaches’, European Integration online Papers (EIoP), 6/10. 47 Report 10 May 2001. 48 Proposal 2000/01: RS1, p. 132. Another difference is that only the chamber may make statements on behalf of the parliament. In both Denmark and Finland the EACs may make statements on

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behalf of the parliament. On behalf of whom the statements are made does not in itself effect how binding the statements are for the counterpart and in practice this difference does not mean a lot. Report 1996/97: KU2, p. 11; cf SOU 1994:10, p. 90. See the chapter by Tapio Raunio in this volume. Socialistisk Folkeparti, Dansk Folkeparti, Det radikale Venstre and Enhedslisten. Raunio (2001), op. cit., pp. 187, 196f. Boelt Møller and Nielsen, op. cit., p. 159f. Cf. Lindgren, op. cit. Torbjörn Bergman and Erik Damgaard (eds) (2000) Delegation and Accountability in European Integration: The Nordic Parliamentary Democracies and the European Union (London: Frank Cass); also published as a Special Issue, Journal of Legislative Studies, 6, 1. Jääskinen and Kivisaari, op. cit.; Tapio Raunio and Matti Wiberg (1997) ‘Efficiency through decentralisation: the Finnish Eduskunta and the European Union’, in Matti Wiberg (ed.), Trying to Make Democracy Work: The Nordic Parliaments and the European Union (Stockholm: Gidlunds/ Riksbankens Jubileumsfond), pp. 48–69. Ann-Cathrine Jungar and Shirin Ahlbäck Öberg (2002) ‘Parlament i bakvatten? Den svenska och finländska riksdagens inflytande över EU-politiken’, in SOU 2002: 81, Riksdagens roll i EU. Två expertrapporter till EU2004-kommittén. Cf. Sverker Gustavsson (2002) ‘Demokrati, legitimitet eller sakpolitik?’, in Ulf Bernitz, Sverker Gustavsson, and Lars Oxelhielm (eds), Europaperspektiv (Stockholm: Santérus förlag). Cf. Lisa L. Martin (2000) Democratic Commitments: Legislatures and International Co-operation (Princeton, NJ: Princeton University Press); John Peterson and Elizabeth Bomberg (1999) Decision-making in the European Union (New York: St Martin’s Press). Jarle Trondal and Frode Veggeland (1999) Norske myndigheter og EÖS: mellom utenrikspolitikk og innenrikspolitikk (Oslo: ARENA Working Papers 99/10). Fredrik Sejersted (1996) ‘The Norwegian parliament and European integration: reflections from medium-speed Europe’, in Eivind Smith (ed.), National Parliaments as Cornerstones of European Integration (The Hague: Kluwer). Cf. Dag Arne Christensen (1997) ‘Europautvala i Danmark, Sverige, og Noreg: Sandpåströningorgan eller politiska muldvarpar?’, Nordisk Administrativt Tidsskrift, 2: 143–62; Kjell Myhre-Jensen and Brit Flöistad (1997) ‘The Storting and the EU/EEA’, in Matti Wiberg (ed.), Trying to make Democracy Work: The Nordic Parliaments and the European Union (Stockholm: Gidlunds/Riksbankens Jubileumsfond); Trond Nordby and Frode Veggeland (1999) ‘Lovgivningsmyndighetens suspensjon: Stortingets rolle under EØS-avtalen’, Tidsskrift for samfunnsforskning, 40, 1: 87–109; Frode Veggeland (2002) Internasjonal rett og nasjonal maktfordelning: EØS-avtalen og politiske og statsrettslige aspekter ved Høyesteretts dom i Finanger-saken, paper presented at the meeting of the Nordic Political Science Association, 15–17 August.

7

South European national parliaments and the European Union An inconsistent reactive revival José Magone

The past three decades have been extraordinary for the region that we call now new southern Europe. Indeed, since the transitions to democracy in Portugal, Spain and Greece in the mid-1970s, Richard Gunther, Hans Jürgen Puhle and Nikiforos Diamandouros decided to call it ‘new’ to refer to the democratic nature of the regimes in contrast to the ‘old’ authoritarian dictatorships.1 Due to the similarities in development and political culture between Italy and those new democracies, the ‘new’ southern Europe democratic region comprises these four countries. A more enlarged definition of southern Europe has to include the new states that emerged out of former Yugoslavia, Romania, Bulgaria and the Mediterranean islands of Cyprus and Malta. Sometimes Turkey is included in this definition of ‘new’ southern Europe, although for some this overstretches the concept. In all definitions, however, the core of the ‘new’ southern Europe remains the Iberian countries of Portugal and Spain, Italy and Greece. It is the intention of this chapter to use this core definition to compare the way these four countries deal with the European Union (EU) in general, and how their parliaments scrutinize EU affairs in particular. The starting point for our analysis is that all four countries regard the European Union as an important vehicle for the modernization of both state and society. Southern European countries were and to some degree still are characterized by many patrimonial-clientelistic features which prevented a proper functioning of democracy before the 1970s and remained an important obstacle to move towards a qualitative improvement afterwards. While this is not the place to discuss thoroughly such patrimonial–clientelistic features of southern European systems, suffice to say that in 1992 an entire political class and party system collapsed in Italy due to the uncovering of a huge web of systemic corruption by the independent judges of Milan under the leadership of Antonio di Pietro.2 Similarly, one can identify a myriad of cases of patrimonialism, clientelism and corruption in Portugal, Spain and Greece in the contemporary period. Without going into much detail, during the 1980s and early 1990s several corruption cases were uncovered in Spain when Socialist leader Felipe Gonzalez was prime minister between 1982 and 1996, in Greece when Andreas Papandreou was head of government between 1981 and 1989, and 1993 and 1996, and in Portugal throughout the 1980s and 1990s.3

South European national parliaments and the European Union 117 In the context of such abuses European integration is regarded as a remedy to overcome this vicious circle of patrimonialism and clientelism. For example, Kenneth Dyson and Kevin Featherstone have drawn attention to the importance of the vincolo esterno (the external link) for Italian civil servants dealing with reform of the national administrative and political systems. This vincolo esterno is the EU, which is constantly forcing the southern European countries to modernize their governance structures, to apply the rule of law and become more transparent and accountable in their decision-making.4 For southern European elites, therefore, membership of the EU is critically important. Indeed, for Portugal, Spain and Greece the main reasons for this attitude were related to the desire to overcome the isolationism imposed by the previous authoritarian regimes and to consolidate their fledging democracies in the 1980s. Italy shares some of these characteristics with the southern European countries, but beyond that there is a cultural linkage between Italian nationalism of the Risorgimento era and support for the unity of Europe. Italy is generally regarded as one of the most pro-integrationist countries of the EU, only matched by the Belgians and the Irish. In general Southern European elites and populations are strongly supportive of European integration. Indeed, the Eurobarometer studies demonstrate a consistent support for European integration;5 in some cases southern European populations perceive its pace to be too slow, as responses to the Eurodynamometer seem to indicate. 6 It is striking also that the Europhile attitudes of southern European elites and populations contrast quite remarkably with the Eurosceptic ones of northern European elites and populations. There is no established Eurosceptic presence nor pressure to challenge the overall cross-party agreement that the European Union is an important vincolo esterno which benefits the country in terms of improving the quality of democracy and of modernizing state structures and practices. Political elites and civil servants are thus quite free in pushing forward the European integration process. In spite of this Europhile pattern, however, southern European democracies have a strong deficit in terms of transposition of EU legislative acts into national law and qualitative implementation; Greece and Italy in particular are regularly named and ‘shamed’ as laggards in this respect.7 It is a paradox that the more Eurosceptic northern countries are by far more successful in transposing EU legislative acts into national law and in implementing EU directives than the Europhile southern European countries. The best explanation for this fact can only be the failure of all southern European bureaucracies to overcome the clientelistic–patrimonial obstacles inherent in their political systems in order to become more efficient in dealing with the throughput of EU legislative acts.8 In sum, the place of southern European national parliaments in the EU multi-level governance system cannot be understood without taking into account the clientelistic–patrimonial legacy of the past and the pattern of Europhile attitudes among the political elites and populations. The next section of the chapter analyses the salience of EU matters in the four south European national parliaments. The following two sections will then focus on the institutional adaptation to European integration by the Greek, Italian, Portuguese and Spanish legislatures, and on how these parliaments scrutinize supranational EU laws.

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The fifth section looks at how the southern European countries and their parliaments contributed to the Convention and the current constitutional process. The concluding section summarizes the main points. The main argument of the chapter is that in many ways the south European parliaments are quite weak in relation to their governments, and not only in European affairs.

Table 7.1 The Southern European parliaments. Italy

Spain

Portugal

Greece

Structure of parliament

Symmetrical bicameralism

Asymmetrical bicameralism

Unicameralism

Unicameralism

Number of seats

Senate (Upper House): 315

Senate (Upper House): 257

Assembly of the Republic: 330

Vouli: 300

Chamber of Deputies (Lower House): 630

Congress (Lower House): 350

Senate: Proportional representation

Senate: 104 senators elected directly in 52 provinces by limited votes and 153 nominated according by regional assemblies

Directly elected by proportional representation in 24 constituencies

288 directly elected by proportional representation system in three stages of the electoral process 12 nominated by parliament

Chamber of Deputies: Proportional representation, winning coalition gets 55 per cent of seats

Chamber of Deputies: directly elected by proportional representation in 52 provinces

Important role of committees

Weak role for committees

Weak role of committees, but improving

Weak role of committees

Election

Committees

South European national parliaments and the European Union 119

The salience of EU affairs in Southern European parliaments Italy The discontinuous history of democratization in southern Europe was not very propitious for the strengthening of parliamentarianism in the region. Although Italy emerged after 1945 as a new democracy, the Cold War led to an unhealthy and imperfect bipolarism, in which the Christian democratic party (Democrazia cristiana – DC) formed coalitions in order to prevent the Communist Party of Italy (PCI), which was the second largest party, from attaining power. Such a policy had significant consequences for Italian parliamentarianism. The need to form coalitions led to (generally) weak governments, which were doomed to collapse before the electoral term came to an end. This governmental instability was outweighed by the stability of the political elites which came always from the same parties and merely changed ministries with changes of government. These weak executive formations allowed the parliament to play a central role in post-war Italian politics. Indeed, Maurizio Cotta speaks of the centrality of Italian parliament in the Italian political system until 1992. In spite of this centrality, clientelism and patronage played a major role in the initiation and implementation of Italian legislation.9 Many laws, the so-called leggine (small laws) were approved in committees on behalf of constituencies of MPs. The proportional electoral system with multiple preferential voting degenerated into a web of systemic corruption, to which parliament became central.10 In this context, European issues were not very salient. Although Italy was a founding member of the EU, the lack of visibility in shaping the process was one of the major characteristics.11 According to Gilberto Capano and Marco Giuliani the whole political system moved after the 1980s towards a majoritarian style of politics. That meant that successive reforms, including the mixed electoral system which was valid until the end of 2005, had the effect of strengthening the executive at the expense of parliament. The present electoral system based on proportional representation allows for the victorious party to gain 55 per cent of the seats in the lower house, even if it does not achieve an absolute majority at the ballot box. In this sense, the legislative role of parliament has declined considerably, while the executive has gained autonomy. Although there are fewer laws approved at committee level, this is compensated for by approval at plenary level. The constitutional reform of 2001 reduced even further the powers of parliament, because some legislative acts can now be approved by the regions. These are processes related to Europeanization designed to achieve more efficiency in transposition of EU law and its implementation. 12 Whatever the causes it is clear that such changes mean that Italy can be identified as a clear arena where ‘deparliamentarization’ has occurred. In tandem with this, European policy over the years tended to be left to the government of the day as part of foreign policy. But with a significant degree of ‘Europeanization’ impinging on Italian legislative procedures and structures after 1987 and the adoption of the Single European Act (SEA), what was traditionally ‘domestic’

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policy began to migrate from the home arena, again to the detriment of the Italian parliament’s ability to control its own executive. Thus, in Italy both domestic and European developments have contributed to deparliamentarization. Greece The southern enlargement of the 1980s was highly beneficial for the consolidation of the new southern European democracies. The so-called joint parliamentary assemblies between members of the respective southern European parliaments and Members of the European Parliament (MEP) helped to establish the linkage between the supranational and national levels. Moreover, it aided the first steps towards institutional learning and knowledge transfer. In spite of the successful integration of all three countries into the European Community (EC)/EU, it is important to differentiate between Greece, which joined in 1981, and Portugal and Spain, which did so in 1986. It seems that the early entry of Greece to the EC led to major problems of adaptation, because of the short period of accession negotiations. This had implications for Greek parliamentarianism, which is still characterized by the least effective parliament among the four south European countries in terms of control of the executive and scrutiny of EU affairs. Although the acquis communautaire was less complex and extensive in 1981 when Greece joined, already at that time it was important that the respective country be able to absorb the EU’s legal norms both administratively and politically. It soon became evident that the lack of ability of the Greek public administration to adjust to the European integration process led to a significant waste of resources in the 1980s.13 The so-called ‘lost decade’ during the premiership of Andreas Papandreou was characterized by seemingly ingrained ‘bureaucratic clientelism’, in which the government used state resources to secure its electoral clienteles. Unsurprisingly, over time this had quite a negative impact on the functioning of the Greek parliament.14 Changes to the electoral system such as a reinforced proportional representation also contributed to a strengthening of government in relation to parliament. The socialist PASOK has been by far the most dominant party in power since the break with authoritarianism and was quite content to leave the parliament floundering and relatively marginal in the decision-making process. According to experts in the field, this dominance of the executive hindered the development of parliament as a professional and critical institutional presence within the Greek political arena.15 Recent changes to the constitution and the standing orders of parliament allow theoretically for a stronger involvement of parliament, but in practice the previous pattern of a low profile will probably continue to prevail. According to most commentators, the reasons for the revision of the constitution were not clear. Over 80 items have been discussed since 1997, which were more or less included in the constitution.16 As in the Italian case one cannot but argue that the Greek example also points to a pattern of deparliamentarization.

South European national parliaments and the European Union 121 Portugal In contrast to the Greek parliament, the Iberian assemblies improved their performance considerably in the 1990s. The waiting period for accession to the EC of eight years helped both countries to consolidate their young democratic institutions after the parliament had remained quite marginal in the early 1980s. The high level of governmental instability in Portugal, for example, had negative repercussions on the internal development of the Portuguese parliament at that time. After accession to the EC in 1986, the Portuguese parliament set institutions and structures in place to deal with the scrutiny of European legislation. Nevertheless, it was only after the Treaty of Maastricht in 1992 that one can speak of a more dynamic parliament. According to Cristina Leston Bandeira, in spite of the overall improvement of the position of the Assembleia da República in the political system, the absolute majority governments of Anibal Cavaco Silva reduced it to the role of a retrospective legitimizing parliament in the 1990s. In terms of strategies the parliament attempted real scrutiny of executive action by extensively using the control mechanisms at its disposal. Moreover, it took important steps to engage with the Portuguese citizenry and civil society.17 Between 1995 and 2005, the parliament had to deal with minority or coalition governments which contributed to giving it a greater visibility as a policy-making legislature. Only after the legislative elections of 20 February 2005 did the electorate return a new absolute majority government, but it is still too early to recognize a pattern of executive–legislative relations. One has to acknowledge that the Portuguese parliament has become more professionalized over time, although a gap still remains with the more developed national parliaments of the northern member states of the EU. In particular, committee work has become more important in the past three decades of democracy.18 In this context, scrutiny of EU legislation became more salient in the 1990s. The engagement of some Europhile parliamentarians also allowed for a more visible performance of the Assembleia da Republica in European matters.19 Spain Similarly to Portugal, the Spanish Cortes became more professionalized and institutionalized in the 1990s. In the 1980s and early 1990s, the Socialist absolute majority governments under Prime Minister Felipe Gonzalez were not propitious for a strong engagement of the Cortes. Although institutions were created to deal with European matters, it was again only in 1994, after the Treaty of Maastricht, that a more systematic approach to scrutiny of EU legislation began to be undertaken. The professionalization and institutionalization of the Spanish parliament was, and is, undermined by the fact that the political system gives a strong position to the prime minister through the instrument of the constructive motion of censure, which forces the opposition parties to be responsible in their parliamentary work. Stability is given a high value in the Spanish political system, because of the negative legacy of the Spanish Second Republic (1931-6), which led to a civil war and still conditions the behaviour of the Spanish political classes.

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In contrast to the Portuguese and Italian parliaments, the Spanish Cortes has a very moderate approach to scrutiny of EU legislation.20 Indeed, it is felt among MPs that European Union issues are part of governmental foreign policy, in which the parliament has only a very limited role to play.21 Summing up this section of the chapter it is probable that the most dynamic of southern European parliaments was and is the Italian legislature, followed by the Portuguese, Spanish and Greek ones. In spite of this dynamism, it is a bit doubtful if this materialized into more efficient ways of controlling the government in European public policy-making.

The committees for European affairs A key common feature of southern European parliaments in relation to scrutiny of EU legislation is their mimetic character. Southern European parliaments have from the beginning of their engagement with Europe been reactive rather than proactive actors as EU legislation has been implemented mainly by the respective governments. But that does not mean that the four parliaments have not developed some working techniques and instruments to make governments more accountable. Perhaps the most important instrument has been, as in other member states, the of European Affairs Committee (EAC). Committees of European Affairs became more active and engaged after the ratification of the Maastricht Treaty in 1993. Although the Italian, Spanish and Portuguese parliaments had such committees before 1994, their substantive work was very sporadic and deferential towards the government. Indeed, the Italian Senate created such a committee as far back as 1968, which was more or less a copy of a similar institution in the German Bundesrat. The so-called Consultative Committee for European Community Affairs (Giunta consultativa per gli Affari delle Communitá Europe) had merely consultative powers and lacked any ability to scrutinize EC/EU legislation. In the Chamber of Deputies, the Committee of Foreign Affairs created subcommittees which dealt exclusively with the Permanent Committee for Community Affairs (Comitato Permanente per gli affari communitari). Both committees were quite irrelevant in the whole decision-making process, however, since European policy was regarded as foreign policy and as such the exclusive competence of the government.22 The main thrust towards a more active role for the parliament in European affairs came during the second half of the 1980s when legislation emanating from the SEA led to a restructuring of the whole machinery of transposition of EC law into national law. The so-called Fabbri and La Pergola laws of 1987 and 1989 enhanced the role of the Italian parliament in this process. The main reason for their introduction was the fact that Italy was regarded as a laggard in the transposition of the numerous directives deriving from the Single European Market. The possibility that failure to transpose such EC legislation might jeopardize Italian participation in the Single Market pushed administrative and political elites to develop a mechanism to speed up this process. The La Pergola law developed the Legge Communitaria (Community Law), which became the main vehicle to submit to parliament a list of the laws transposing the EC directives. The major

South European national parliaments and the European Union 123 transformations occurred in the Chamber of Deputies, in which the issues dealt with by subcommittee were upgraded to be part of the Committee of External and Community Affairs. Three years later in 1990, the Special Committee for Community Affairs became independent from the External Affairs Committee and was able to exercise more autonomy in the scrutiny of EU legislation. Finally, in 1996, it was upgraded to a standing committee and since then it has become a very active force in pushing European issues on to the agenda of the parliament. Indeed, the EAC was able to gain full decision-making powers through law reforms in 1996 and 1999. The community law of 2000 introduced far-reaching ex ante powers to the committee, which allows for a limited input into the Italian position towards decision-making in the Council. In contrast to the standing committee in the Chamber of Deputies, the Giunta in the Senate remained a subaltern confirming committee. While the Commissione consists of 40 members, the Giunta comprises 25 senators. In Portugal and Spain such EACs were established in 1985 on the eve of full accession to the EC. As in Italy, such committees gained more influence after reforms in 1994. In the Portuguese parliament, a Committee of Community Affairs was established in 1987 and reformed in 1988. Because of the Treaty of Maastricht, parliamentary scrutiny was fully enshrined in the third revision of the constitution of 1992. Law 20 of 15 June (1994) set out the overall procedure of scrutiny of EU legislation. Since then, the EAC has been extremely active. In 2002, because of the austerity measures of the government, the committee was merged with the Committee of External Affairs. In the ninth legislature (2002–4) it became known as the Committee of European and External Affairs (Comissão de Assuntos Europeus e Externos). In many ways, the previous EAC and the merged one were constrained by resources. Their main way of influencing policy was to hold regular hearings with the members of government responsible for EU affairs. In the ninth legislature between 2002 and 2004, the committee organized 91 hearings, of which about a quarter were with government officials.23 In the tenth legislature, the EAC regained its autonomy and stepped up its information role. The committee has been very active in organizing hearings with civil society actors and some of their members were very active in monitoring Intergovernmental Conferences (IGC) and the European Convention. The committee consists of about 30 MPs.24 In 2006, it consisted of 33 members representing all parties according to their respective strength.25 Spain has had a Joint Committee for Community Affairs with members of the Congress (lower house) and the Senate (upper house) since 1985. In 1994, this became the Joint Committee for the European Union (Comisión Mixta para la Unión Europea). It is a non-legislative committee, whose main task is to give opinions on different EU legislative acts, and organizes regular meetings with government officials in order to be informed by key members of the government such as the minister of foreign affairs and the state secretary for european affairs. Senior civil servants dealing with EU issues are more frequent guests of the committee. On average it consists of 36–40 members, of which half are members of the lower

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house, and half members of the upper house.26 In 2006, there were 46 members in the committee, which meets between 8 and 12 times a year. The major exception was 2002, when there were 31 meetings, at a time when not only was the European Convention taking place but also Spain held the presidency of the EU in the first half of the year. In the eighth legislature (2004–) the number of meetings has been declining, to 8 in 2004, and 7 in 2005 per year. 27 In contrast to Italy, Portugal and Spain, a Greek Committee of European Affairs (Epitropi Evropaikó Ypothésseon) was not established until 1990, under the Kostas Mitsotakis government. It was regarded as a response to a motion of the European Parliament (EP), which recommended that all national parliaments should establish such a committee, and that Greece was the only country without one. The then president of the Vouli, Apostolis Kaklamanis, was instrumental in setting up the EAC.28 The committee consists of 31 members, of whom 16 are national MPs and 15 are MEPs. According to Peter Zervakis and Nikos Yannis, the Committee of European Affairs meets very irregularly and is quite ineffective in terms of EU legislation scrutiny, in spite of the fact that there is a procedure for handling such matters. Most of the committee’s work tends to focus on hearings of government ministers dealing with EU issues. The use and abuse of the plenary sessions to highlight EU shortcomings is quite a common practice. 29

The procedures for scrutinizing EU legislation Southern European parliaments have been characterized by Andreas Maurer and Wolfgang Wessels as slow adaptors to the EU multi-level governance system. The southern European cluster is reactive and their powers are mainly soft and postfacto.30 A review of the activities and powers of all four parliaments shows that the executive does not need the approval of parliament to take a position in the Council. Most of the EU directives transposed into national law by the southern European governments are presented to the respective committees in the different countries as a fait accompli at the end of the year. In Italy, Portugal and Greece the government sends a report on all directives transposed into national law during the previous year to parliament. This is then reviewed by the respective EAC in conjunction with the other standing committees. At the end of the review, these committees may write a report which, though it will normally contain some soft criticisms, is generally supportive of the governmental report. In Portugal, such reviews by the EAC have become more regular since 1994. Criticisms voiced by the committee concentrate mostly on the poor quality of governmental reports, as the latter were mere carbon copies of reports from the Commission without any qualitative comments. The committee also criticized the lack of participation by members of government in the plenary debates which on many occasions took place on Fridays or at the end of the week. In this sense, the EAC was very keen to use other instruments to achieve governmental accountability. Regular monthly hearings with the state secretary for European affairs and civil servants are a common strategy to gain information about European integration. The IGCs of the past fifteen years have led also to a

South European national parliaments and the European Union 125 growing mobilization of actors of civil society and citizens in order to disseminate information and consult the public about far-reaching developments in the EU. The committee asked several universities to send them assessments on the different Treaties which were then posted on the internet for public consumption. The Assembly of the Republic has indeed become a central player in educating the public and as an alternative source of information for the population.31 In spite of promises by the government to forward legislative acts to the parliament before they were decided and discussed in the Council, such processes have been irregular and sporadic. According to Ana Fraga, there is no systematic transmission of documents by the government and most of the information is actually culled from the internet.32 However, in the tenth legislature, former Commissioner Antonio Vitorino became president of the committee and has been pushing for a more dynamic approach towards scrutiny of government. In comparison with Portugal, Greek scrutiny of EU legislation has been very irregular. According to Dionyssios Dimitrakopoulos, since 1981 the government has been obliged to submit a report at the end of each legislative session on European laws adopted by the parliament. In fact there was only one report, in 1989, which covered all eight years.33 The establishment of the new EAC in 1990 did not improve the situation substantially. The whole procedure envisages that the government submits all legislative proposals to parliament, which then forwards these to the EAC. The committee then liaises with the other standing committees and if it decides to act it prepares a report that is discussed in the plenary session. This report is not voted on and is not binding for the government. The procedure is in reality characterized by irregularity and considerable delays. One of the positive aspects of the overall reform of the procedures is that it led to a better connection of the parliament to civil society organizations and actors. Indeed, the IGC of 1996–7 led to a major mobilization of civil society in which parliament was quite an important catalyst. The committee also held regular hearings with the Minister of Foreign Affairs and other ministers, which has also been a key vehicle of scrutiny.34 In 2001, amendments to the constitution stipulated that parliament should be properly informed about European affairs. Nevertheless, the pattern of a low parliamentary profile in EU legislation scrutiny did not change very much.35 Indeed, Dimitrakopoulos shows this as evidence for a path-dependent development of Greek parliamentarianism which has been so far characterized by being more or less a rubber-stamping parliament of the government of the day.36 In contrast to Greece, the Italian parliament has been so far the most active of the four in terms of EU legislative scrutiny. The EAC in the Chamber of Deputies is in charge of scrutinizing the body of new EU law presented every year by the government. It sends such laws to the standing committees and waits for their reports which come back after fifteen days. Subsequently it has one month to prepare a report and send it on to the Giunta of the Senate for confirmation. Scarce resources and inadequate training mean that these time periods are frequently exceeded. Between 1989 and 1999 seven annual laws were approved that allowed for an improvement of the transposition of EU legislation into national law. In spite of the

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fact that the whole scrutiny process improved considerably, it remains quite uncritical. The government is seldom challenged in this respect. According to Sergio Fabbrini and Alessia Doná, the whole process of EU scrutiny is quite inadequate and lacks the involvement of interest groups or even a strong engagement of MPs. The main reason is not only the lack of expertise but also the time constraints facing the parliament.37 The EAC concentrates its work on oral hearings with ministers before they go to Council meetings. Between 2001 and 2006, there were 36 such hearings. Three-quarters of these meetings were organized in conjunction with other permanent committees. The Europhile consensus surrounding the two chambers of parliament is not conducive to critical discussion. On the contrary, most reports are supportive of the government position.38 Since 1996, the number of meetings of the EAC increased by 700 per cent to 180–200 meetings per legislative session. Such an increased workload could be demonstrated in both the thirteenth (1996–2001) and the fourteenth legislature (2001–6). Finally, the Italian parliament is also the only of the four that has established a liaison office in the EP. This can be regarded as a commitment to be more involved in the whole decision-making process. This could also be interpreted as a mere mimetic gesture in order not to stay behind the parliaments of other major countries.39 The procedures of the Spanish Joint Committee have remained quite stable since 1994. This non-legislative committee gives opinions on all legislative acts submitted to parliament by the government. Moreover, it organizes hearings with the secretary of state for European affairs, civil servants and other ministers.40 It is also in charge of monitoring major processes of European integration such as IGCs and the work of the European Convention. One specific example of how the system works in practice can be seen in the testimony of Minister of Foreign Affairs Moratinos to the Joint Committee, explaining why the new Socialist government under Prime Minister José Luis Zapatero were changing the negotiation strategy regarding the Constitutional Treaty that had been set out by the previous government. Minister Moratinos had to submit himself to the criticisms of the representatives of the conservative People’s Party who regarded the compromise achieved in the Constitutional Treaty as a bad deal for Spain.41 One of the main reasons for the low domestic profile and influence of southern European parliaments is the lack of resources they have to contend with within their parliamentary systems. In particular the Portuguese, Spanish and Greek EACs have very few resources available to them. In Portugal, austerity measures introduced by the government between 2002 and 2005 led to a merger of the resources of the Foreign Affairs and EU committees, hardly a move which benefits either committee’s oversight activities. In Spain, the Joint Committee has to share human and material resources with other committees. In Greece, the parliament itself is not well resourced which leads to a similar situation at committee level. The Italian parliament is the only one that has experienced an upgrading of resources in dealing with European affairs. About 20 staff members are attached to the Commissione and five to the Giunta. The staff in the chamber of

South European national parliaments and the European Union 127 deputies is drawn from the Service for Community and International Affairs in the Research Service Office of parliament.42 According to Fabbrini and Doná, the Research Service Office is quite overwhelmed, due to the growing complexity and quantity of legislation that is produced at the European level.43 In sum, southern European parliamentarianism has improved its procedures in dealing with European Union affairs. Nevertheless, they remain post facto and largely ineffective both in comparative and normative terms.

Southern European parliaments and the European constitutional process When examining the input of southern European parliaments into the work of the European Convention and the following IGC, one has to remember that southern European civil societies are still lagging behind in comparison with the democracies of northern Europe. The late democratization process led to a late establishment of civil associations. While Italian and Spanish civil societies have developed considerably in the past two decades, those of Portugal and Greece still lag considerably behind in creating strong civil society organizations.44 This naturally has implications for any discussion of European developments at national level. In spite of the legacy of weak civil societies, Italian and Spanish civil society organizations were among the largest national groups along with the German and French ones. This is certainly a considerable engagement of these southern European countries. In contrast, Greek and Portuguese civil organizations were almost non-existent.45 In Greece, the main catalyst for mobilizing civil society was the ministry of foreign affairs, which coordinated and organized participation in Greece and at the European level. Indeed, over thirty meetings were organized by interest groups, a large part of them organized with support from the ministry of foreign affairs or the EP office in Greece. The major national organizations responded reactively to the overall strategies of the main European ones.46 There was also an attempt to mobilize the sub-national level, but with limited success.47 The EAC in the Greek Vouli remained more or less in the background throughout the process. Of the twelve meetings organized in 2002–3, nine were dedicated to the European Convention. Several issues related to the Convention were discussed, in particular the role of national parliaments in the EU. Overall, there was no plenary session in relation to this issue and no hearings, and the EAC did not take any specific positions in relation to the Convention. The two main parties sent the main parliamentary representatives to the Convention. In the overall allocation of places, the orthodox communist party was excluded which led to the withdrawal of the Synaspismos (Left coalition) substitute candidate from the Convention team in protest.48 The whole process of the Convention gained somewhat more salience, however, in the first half of 2003, when the Greek government held the presidency of the European Union.49 In Portugal, mobilization of the civil society by government or parliament was also quite weak. The Assembleia da República was more engaged in the whole process

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than the Greek Vouli, but the overall result was more or less the same. Although the EAC was against the use of the Convention as a method, it had to change its mind after the main two parties, PS and PSD, adopted the positions of their Europarties – the European Socialist Party (ESP) and the European People’s Party (EPP). The committee held several meetings and hearings with members of the government, Portuguese representatives at the Convention and other key players in the Convention. Monthly meetings were held with the parliamentary representatives, who reported on developments in Brussels. Four committee meetings were held with government representatives but the attendance of MPs was low.50 Throughout 2002 and 2003 several Portuguese institutions, including the parliament, co-organized with interest groups, citizens, universities, and other bodies, seminars and conferences to promote public debate on the future of Europe. In spite of a very active role played by the government, the parliament, the EP office, and the Commission’s office in Lisbon, the overall impact remained minimal. A website for the public debate on the Convention set up by parliament did not attract very much attention.51 But the new president of the committee, Antonio Vitorino, has brought new dynamism into strengthening linkages with civil society after 2005. A forum on ‘Portugal and the Future of Europe’ was set up to collect opinions from organized civil society and the public at large.52 Italy was quite well represented at the Convention. One of the Convention vicepresidents was Giuliano Amato, which led to an overall representation of seven members (in cluding two governmental representatives, two representatives from the Chamber of Deputies, and two representatives from the Senate). As already mentioned in the previous section, the Italian EAC in the Chamber of Deputies has improved its ability to monitor EU processes. A special subcommittee on the future of the European Union was already set up in 2001 and continued to hold special hearings with prominent figures of European integration, such as exchancellor Helmut Kohl, the president of the Belgian federal Senate, Armand Decker, and several Italian representatives such as Amato. The government took part in several discussions with the Italian parliament, reporting regularly on the developments in the Convention.53 The Spanish Joint Committee was quite active throughout 2002 and 2003. Monitoring subcommittees on the future of Europe and enlargement were established in 2000 and continued to work throughout the period of the Convention. The Joint Committee gave special importance to the role of the regions and regional parliaments in the European integration process. Such issues were pushed onto the agenda by the regionalist parties represented in the Cortes.54 The work of the Spanish EAC gained prominence in the first half of 2002, when Spain held the presidency of the EU. In sum, governments dominated the whole debate on the future of the Europe during and after the Convention in the four south European countries. The parliaments had a subaltern position in the whole mobilization of national civil societies. Civil societies themselves are still quite underdeveloped in Greece and Portugal and Spain. Quite a different picture emerges from the Italian case, which is known for a very pro-European political engagement across the political spectrum.

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Conclusions: pro-EU consensus undermines scrutiny of European affairs This chapter has argued that the southern European parliaments show a pattern of parliamentarianism which is both weak and inconsistent. In addition to the legacy of democratic discontinuity, in which long periods of authoritarianism shaped the political culture of these countries, the general positive attitude towards European integration undermines effective parliamentary scrutiny of EU matters. The main reason behind this pro-European consensus is that southern Europeans tend to perceive their political systems as in need of modernization and democratization. The European Union is regarded as the external link to provide the needed reform, and this belief leads to an uncritical perception of the European integration process and all associated aspects of Europeanization as being positive for the countries concerned. The scrutiny of EU legislation by southern European parliaments follows this path-dependent attitude. All southern European parliaments have mimetically upgraded their structures to deal more efficiently with legislative EU scrutiny. Most of this upgrading happened during the 1990s after the Treaty of Maastricht and the Treaty of Amsterdam. Despite such improvements, a lack of human and material resources has contributed to the low profile that these parliaments attain regarding EU issues in their domestic settings. However, while there are many similarities, there are also significant differences in performance between the four parliaments. While the Italian and Portuguese EACs have maintained a high level of intensity regarding scrutiny, the Spanish and Greek committees tend to work less and have an even lower capacity for influencing executive behaviour. The enhanced role for national parliaments in the constitutional process is unlikely to change considerably this pattern of parliamentary behaviour in southern Europe.

Notes 1 P. Nikiforos Diamandouros (1996) ‘Southern Europe: a third wave success’, in Lawrence Whitehead (ed.), The International Dimension of Democratization: Europe and the Americas (Oxford: Oxford University Press). 2 Stefano Guzzini (1994) ‘La longue nuit de la premiére republique: l’implosion clienteliste en Italie’, Revue Francaise de Science Politique, 44, 6: 979–1013. 3 José Magone (2003) The Politics of Southern Europe: Integration into the European Union (Westport, CT: Praeger), pp. 70–82. 4 Kenneth Dyson and Kevin Featherstone (1996) ‘Italy and EMU as a “Vincolo Esterno”: empowering the technocrats, transforming the state’, South European Society and Politics, 1, 2: 272–99. 5 José Magone (2002) ‘Attitudes of southern European citizens towards European integration: before and after accession 1974–2000’, in Antonio Costa Pinto and Nuno Severiano Teixeira (eds), Southern Europe and the Making of the European Union (Boulder, CO: Columbia University Press); Magone, op. cit., 2003, pp. 229–37. 6 Eurobarometer, 61, 2004, B 89. 7 Tanja A. Börzel (2001) ‘Non-compliance in the European Union: pathology or statistical artefact?’, Journal of European Public Policy, 8, 5: 819.

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8 Dimitri Sotiropoulos (2004) ‘Southern European public bureaucracies in comparative perspective’, West European Politics, 27, 3: 405–22. 9 Maurizio Cotta (1994) ‘The rise and fall of the “centrality” of the Italian parliament: transformation of the executive–legislative subsystem after the Second World War’, in Gary W. Copeland and Samuel C. Patterson (eds), Parliaments in the Modern World: Changing Institutions (Ann Arbor: University of Michigan Press). 10 David Hine (1993) Governing Italy: The Politics of Bargained Pluralism (Oxford: Oxford University Press), pp. 174–80. 11 Antonio Missiroli (2000) ‘Italy’, in Ian Manners and Richard G. Whitman (eds), The Foreign Policies of European Union Member States (Manchester: Manchester University Press); Antonio Varsori (2002) ‘Italy and European integration’, in Antonio Costa Pinto and Nuno Severiano Teixeira (eds), Southern Europe and the Making of the European Union (Boulder, CO: Columbia University Press). 12 See Gilberto Capano and Marco Giuliani (2003) ‘The Italian parliament: in search of a new role?’, Journal of Legislative Studies, 9, 3: 24–9. 13 Michael Christakis (1998) ‘Greece: competing with regional priorities’, in Kenneth Hanf and Ben Soetendorp (eds), Adapting to European Integration: Small States and the European Union (London: Longman). 14 Christos Lyrintzis (1984) ‘Political parties in post-junta Greece: a case of “bureaucratic clientelism”?’, West European Politics, 7, 2: 99–118; Richard Clogg (ed.) (1993) 1981–89: The Populist Decade (New York: St Martin’s Press). 15 Nicos Alivizatos (1990) ‘The difficulties of “rationalization” in a polarized political system: the Greek Chamber of Deputies’, in Ulrike Liebert and Maurizio Cotta (eds), Parliaments and Democratic Consolidation in Southern Europe (London and New York: Pinter); Penelope Foundethakis (2003) ‘The Hellenic parliament: the new rules of the game’, Journal of Legislative Studies, 9, 3: 85–106; Peter A. Zervakis (2003) ‘Das politische system Griechenlands’, in Wolfgang Ismayr (ed.), Die politischen Systemen Westeuropas (Opladen: Leske & Budrich), pp. 687–730. 16 Nicos Alivizatos and Pavlos Eleftheriadis (2002) ‘The Greek constitutional amendments of 2001’, South European Society and Politics, 7, 1: 63–71; George Mavrogordatos, ‘Greece’, in Richard S. Katz and Ruud Koole (eds), Political Data Yearbook 2002, Special Issue of European Journal for Political Research, 41, 7/8: 964–7. 17 Cristina Leston-Bandeira (2004) From Legislation to Legitimation: The Role of the Portuguese Parliament (London: Routledge), pp. 79–102. 18 Cristina Leston-Bandeira and André Freire (2003) ‘Internalising the lessons of stable democracy: the Portuguese parliament’, Journal of Legislative Studies, 9, 3: 73–8. 19 José Magone (1996) ‘The Assembleia da Republica: discovering Europe’, in Philip Norton (ed.), National Parliaments and the European Union (London: Frank Cass); José Magone (2004) The Developing Place of Portugal in the European Union (New Brunswick: Transaction), pp. 42–6. 20 Pablo Oñate (2000) ‘La organización del congreso de los deputados’, in Antonia Martinez (ed.), El Congreso de los Diputados en España: funciones y rendimiento (Madrid: Tecnos); Jordi Capo Giol (2003) ‘The Spanish parliament in a triangular relationship, 1982–2000’, Journal of Legislative Studies, 9, 3: 107–29. 21 Felipe Basabe Llorens and Maria Teresa González Escudero (2001) ‘The parliament of Spain: slowly moving onto the European direction?’, in Andreas Maurer and Wolfgang Wessels (eds), National Parliaments on their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos). 22 David Millar (1979) ‘Treatment of European Community matters by committees of the national parliaments’, in Valentine Herman and Rinus van Schendelen (eds), The European Parliament and National Parliaments (Westmead: Saxon House ), pp. 171–9. 23 Assembleia da Republica, website www.parlamento.pt, accessed on 30 May 2006. 24 Ana Fraga (2001) ‘The parliament of Portugal: loyal scrutiny and informal influence’, in Andreas Maurer and Wolfgang Wessels (eds), National Parliaments on their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos); José Magone, 2004, op. cit.. 25 Assembleia da Republica, op. cit. 26 Carlos Closa (1996) ‘Spain: the Cortes and the EU – a growing together’, in Philip Norton (ed.), op. cit., pp.136–50; Manuel Cienfuegos Mateo (2001) ‘Las Cortes Españolas ante la integración Europea’, in Carlos Closa (ed.), La europeización del sistema politico español (Madrid: Istmo), pp. 197–221.

South European national parliaments and the European Union 131 27 Congreso de Deputados, website www.congreso.es, accessed on 30 May 2006. 28 Michael Christakis, op. cit., p. 95. 29 Peter A. Zervakis and Nikos Yannis (2001) ‘The parliament of Greece: slow but constant moves towards European integration?’, in Andreas Maurer and Wolfgang Wessels (eds), op. cit., pp. 159–60. 30 Andreas Maurer and Wolfgang Wessels (eds), op. cit. 31 José Magone (2004), p. 44; Ana Fraga (2001) Os Parlamentos Nacionais e a Legitimidade da Construção Europeia (Lisboa: Edições Cosmos), p. 267. 32 Ana Fraga, op. cit., p. 368. 33 Dionyssis Dimitrakopoulos (1995) ‘National policy formulation on European issues in the Mediterranean member-states: the cases of Italy and Greece’, in Joni Lovenduski and Jeffrey Stanyer (eds), Contemporary Political Studies: Proceedings of the Annual Conference held at the University of York, April 18th–20th (Belfast: PSA). 34 Peter A. Zervakis and Nikos Yannis, op. cit., pp. 163–6. 35 Nicos Yannis (2004)‘Greece: on new European tracks’, South European Society and Politics, 9, 1: 126. 36 Dionyssis Dimitrakopoulos (2001) ‘Incrementalism and path dependence: European integration and institutional change in national parliaments’, Journal of Common Market Studies, 30, 3: 413–15. 37 Sergio Fabbrini and Alessia Doná (2003) ‘Europeanization as strengthening of domestic executive power? The Italian experience and the case of the “Legge Communitaria”’, Journal of European Integration, 25, 1: 44–5. 38 Camera dei Diputati, website www.camera.it, accessed on 30 May 2006. 39 Federiga Bindi-Calussi and Stefano B. Grassi, ‘The parliament of Italy: from benevolent observer to active player’, in Andreas Maurer and Wolfgang Wessels (eds), op. cit., pp. 269–99. 40 Felipe Basabe Llorens and Maria Teresa González Escudero, op. cit., pp. 205–11; Manuel Cienfuegos Mateo, op. cit. 41 Congreso de Deputados, 2006, Diario de Sesiones, 2004: 3 and 6, website www.congreso.es, accessed on 30 May 2006. 42 Federiga Bindi-Calussi and Stefano B. Grassi, op. cit., pp. 277–8. 43 Sergio Fabbrini and Alessia Doná, p. 46. 44 José Magone (2003), op. cit. 45 José Magone (2006) The New World Architecture: The Role of the European Union in the Making of Governance (New Brunswick: Transaction). 46 Nicos Yannis, op. cit., pp. 128–30. 47 Ibid. 48 Ibid. 49 Simone Bunse (2004) ‘The 2003 Greek Council Presidency’, Mediterranean Politics, 9, 2: 248–57. 50 Francisco Torres and Ana Fraga (2004) ‘What “Europe”? Portugal’s reactive adaptation to European institutional changes’, South European Society and Politics, 9, 1: 108–9. 51 Ibid., pp. 111–14. 52 Assembleia da Republica, website www.parlamento.pt, accessed on 30 May 2006. 53 Jesse Scott and Filippo Vengara Caffarelli (2004) ‘Italy: a special case and a mixed record’, South European Society and Politics, 9, 1: 44–5, 48–9. 54 Margarita León, Mercedes Mateo Diaz and Covadonga Meseguer (2004) ‘The Spanish case: who was mobilised and how?’, South European Society and Politics, 9, 1: 67–8.

8

The French Assemblée Nationale and the German Bundestag in the European Union Towards convergence in the ‘old’ Europe? Carina Sprungk

As two of the six founding member states of the European Community (EC), Germany and France are deeply affected by the process of European integration. Both countries have themselves also had a significant impact on this process. Indeed, their intensive cooperation in Europe has often been described in positive terms as the ‘driving force’ of European integration. German–French cooperation within the European Union (EU) takes actually place at various levels, encompassing both state and society actors. This is also true for the parliaments of both states and, in particular, for their lower chambers, the French Assemblée Nationale and the German Bundestag. The interparliamentary cooperation includes various aspects like the annual meetings of the parliament’s bureaus, the creation of a Franco-German parliamentary prize or joint meetings of the respective committees on foreign affairs.1 Moreover, the cooperation between the Bundestag and the Assemblée Nationale is particularly intensive with regard to EU politics. German and French members of parliament (MPs) meet regularly to discuss EU matters in the framework of joint meetings of their EU-specific parliamentary bodies, the Bundestag’s European Union Affairs Committee (EAC) and the Assemblée Nationale’s Delegation for the European Union (DUE). Parliamentary cooperation was also intensive throughout the entire EU Constitutional Process. The French parliament did not only support the Bundestag’s commitment to establishing a European Convention.2 Both parliaments also declared their common support to the Draft Constitutional Treaty as elaborated by the European Convention in the wake of the upcoming IGC in 2003 by issuing a Joint Declaration.3 At first glance, however, parliamentary cooperation between Germany and France seems to take place on an uneven level compared to other types of cooperation, since the Bundestag and the Assemblée Nationale have very different positions in their respective political systems. The literature on legislative studies ranks the French parliament as one of the least and the German parliament as one of the most powerful parliaments in the EU-15 in terms of agenda-setting power and interest group attractiveness.4 The German Bundestag as the only directly elected constitutional body is a

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powerful institution which plays a major role in domestic policy processes.5 It is responsible for electing the chancellor as the head of the federal government, has key legislative functions and various scrutiny rights vis-à-vis the government. The consent of the Bundestag is needed for every legislative act before it becomes legally binding. The parliament is composed of at least 598 members, of whom 299 are directly elected in the constituencies (the so-called ‘first vote’) and a further 299 via lists of candidates drawn up by the political parties in each federal states (Länder) (the so-called ‘second vote’). The number of seats a political party obtains depends entirely on these ‘second votes’. The actual number of the members of the Bundestag might however vary between each electoral term and be slightly higher than 598 as a result of the so-called overhang mandates.6 In the newly elected 16th Bundestag, there are 16 overhang mandates, resulting in an overall number of 614 seats. The Christian Democratic Union and the Christian Social Union (CDU/ CSU) party group have a narrow majority of 226 seats, followed by 222 seats of the Social Democratic Party (SPD) parliamentary group with which they form the governmental coalition. The remaining seats are distributed between the smaller parliamentary groups, the Alliance’90/Green Party (Bündnis’90/Grüne: 51), the Liberal Democrats Party (FDP: 61) and the parliamentary group of the Left/ Democratic Socialist Party (Linke/PDS: 54). These parliamentary groups play a decisive role in the work of the Bundestag and have been granted important rights such as the right to initiate bills, to move amendments, to demand a debate on current political issues and to establish commissions of enquiry.7 Each parliamentary group also appoints a vice-president of the Bundestag and a spokesman for each committee. The most important parliamentary group institutions are the so-called ‘working groups’ which deploy group members of each parliamentary committee for coordinating specific decisions in a policy sector. The committee work is therefore largely steered by the parliamentary groups. The Bundestag’s committees usually mirror the ministerial departments of the federal government, with the exception of the five permanent committees set up according to the constitution (one being the Committee on European Union Affairs, see below). The committees prepare the decisions of the Bundestag by deliberating on bills and making recommendations to the plenary. The ‘mirror structure’ allows for close cooperation with, and scrutiny of, the respective minister during committee meetings. Given that the focus of the Bundestag’s work is clearly on the drafting and amending of legislative proposals in the parliamentary committees, while plenary sessions represent only a small part of its activities,8 the Bundestag has often been characterized as a ‘working parliament’.9 However, it has been classified not as a policy-making but rather as a policy-influencing legislature.10 While the constitutional rules endow the Bundestag with a large autonomy and important legislative and control rights, these are not always extensively used in the ‘living constitution’. In contrast, the French legislature has a rather weak position in the national political system with regard to the constitutional rules, since the Fifth Republic has transferred important prerogatives from the parliament to the executive. In general, the Assemblée Nationale has 577 members who are elected by direct universal

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suffrage in a two-ballot majoritarian system with single-member constituencies. In the current 12th electoral term, 364 members belong to the parliamentary group of the Union for a Popular Movement (UMP), while the Socialist Party holds 150 seats. The smaller parliamentary groups hold 30 seats for the Union for French Democracy (UDF), while the Communist and Republican parliamentary group has 22 members, and 11 MPs do not belong to a group.11 As in the Bundestag, the groups are important players in the organization and the functioning of the Assemblée Nationale.12 This is particularly true for the chairmen of the groups, who are members of the Chairman’s Conference which decides on the conduct of the legislative procedure and the holding of public sittings. Committees generally perform similar tasks to their counterparts in the Bundestag, namely to prepare decisions of the plenary. However, one important difference is that the number of committees in the Assemblée Nationale is constitutionally restricted to six. This restriction has a negative impact on the efficiency of the legislative procedure, since numerous legislative proposals from different ministerial departments have to be treated in oversized committees (membership is up to 140 in the two largest committees). Given the comparatively marginal importance of public sittings, the Assemblée Nationale probably better fits the description of a ‘working parliament’.13 But the severe restrictions on its autonomy make it difficult to capture the nature of the French parliament with these categories. On the one hand, unlike the Bundestag, the Assemblée Nationale may not elect the head of government, which is determined by the people who directly elect the French president. With regard to legislative and control activities, on the other hand, the government and even the Constitutional Court have several constitutional rights to intervene in parliamentary work.14 The latter has, for example, to agree on the adoption of the parliament’s standing orders, while the executive can almost exclusively set the parliamentary agenda.15 Moreover, the Assemblée Nationale’s right to initiate legislative proposals is constitutionally restricted to a certain number of policy areas, beyond which it is the exclusive prerogative of the executive to initiate domestic regulations. Moreover, the substantive impact of the French parliament on domestic legislation is constrained overall, since it can be obliged to treat governmental initiatives rather than committee proposals. These can also be decided upon without consideration of the committee’s amendment proposals. The government might also combine the adoption of bills with motions of censure which force the parliament de facto to accept a governmental bill without making any amendments.16 Despite these different positions in the domestic political systems, both parliaments have been empowered in a similar way with regard to their participatory rights in EU policy-making.

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Constitutional rules: instruments and institutions for the treatment of EU affairs Instruments for parliamentary participation: the legal framework The legal framework in Germany Concerning the Bundestag, the legal provisions regulating its participation in EU matters before the Maastricht Treaty merely dated from 1957 and were laid down in the ratification law of the Treaties of Rome,17 which stipulated in Art. 2 that the federal government shall inform the Bundestag about the development of the European integration process.18 Despite the ongoing transfer of domestic competencies to the European level, the legal basis was only subject to reform in 1992 as part of the ratification process of the Maastricht Treaty. However, the driving force of this development was not the Bundestag, but the second chamber, the Bundesrat, which sought and received a legally codified empowerment of the parliament as a precondition for its consent to the Maastricht Treaty.19 The Bundestag then used the Bundesrat’s initiative for its own purposes. The Joint Commission on Constitutional Reform also made the case for constitutional amendments in favour of the parliament, since it had been significantly disempowered as a result of the transfer of competencies to the European level.20 As a result, two new articles, regulating future parliamentary participation in EU matters, Art. 23 and Art. 45, were incorporated in the German Basic Law (Grundgesetz, GG). The most important constitutional provision is Art. 23 of the Basic Law, which obliges the federal government in Section 2 and 3 1 2 3

to provide ‘comprehensive’ information about the European legislation process extensively and as early as possible, to enable the Bundestag to vote on a resolution before a decision is taken in the Council, and to take the parliament’s position into account.

The details are regulated in various subordinate legal provisions, the most important being the ‘Act on the Cooperation of the Federal Government and the German Bundestag in European Union Matters’ (EUZBTG),21 Sections 93 and 93a of the Bundestag’s Standing Orders and the Interministerial Agreement between Federal Ministries on the information of the Bundestag.22 Art. 45 GG provides for a constitutional obligation to set up a parliamentary committee on affairs concerning the European Union (EAC), which can be empowered to ‘exercise the rights of the Bundestag’ vis-à-vis the Federal government. Taken together, these legal provisions represent a significant improvement of the Bundestag’s position vis-à-vis the federal government. Thus, the federal government’s obligation to inform the Bundestag ‘extensively’ as stipulated in Art. 23 Section 2 GG is interpreted very broadly by §§3 and 4 EUZBTG, stating that, apart from

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legislative documents, additional information and statements of other EU institutions have to be transmitted as well. Moreover, according to §93 Section 2 of the Standing Orders, the Bundestag can act autonomously and decide on debating every EU document, be it an officially transmitted one provided by the government or any other kind of document. From a legal perspective, the Bundestag has a wide range of instruments available for obtaining the widest possible range of information about European politics. This is also important with regard to the Bundestag’s possibility to act appropriately on this information. On the one hand, Art. 23 Section 3 GG and §5 EUZBTG stipulate a ‘parliamentary reserve’, meaning that the Federal government has to give the Bundestag the opportunity to state an opinion before a decision is taken in the Council. On the other hand, this opinion has to be considered by the government in the negotiation procedure – though it is not legally binding but rather a political statement. It nevertheless requires that the government has to give reasons if it has deviated from the Bundestag’s opinion.23 These legal provisions empowering the Bundestag’s role in EU politics gain even more weight in the light of the landmark ‘Maastricht-decision’ of the Federal Constitutional Court.24 According to this decision, the Bundestag’s competencies and rights have to remain ‘substantial’ in character so that it remains in a position to provide legitimacy to European politics.25 In this perspective, it could be argued that the post-Maastricht legal provisions not only constitute an opportunity for the Bundestag to participate in EU matters but also create an obligation of the German parliament to participate substantially in decision-making in order to fulfil its legitimacy function. The legal framework in France As with the Bundestag, the legal provisions regulating the participation of the Assemblée Nationale in EU affairs have been revised in the context of the ratification of the Maastricht Treaty and have also resulted in the incorporation of a new article 88-4 in the French Constitution (CF). Details are regulated in the socalled ‘Pandraud Act’26 from 1994, in Articles 151-1 to 151-4 of the Assemblée Nationale’s Standing Orders, and in various ministerial ‘circulars’.27 Moreover, just as in the German case, both the second chamber – the French Sénat – and the Constitutional Court played a pivotal role in this parliamentary empowerment. The broad public debate which took place in France in the context of the referendum on the Maastricht Treaty provoked, among other things, a political climate supportive of the call for a stronger involvement of national parliaments in EU affairs.28 The French Sénat also claimed a stronger say for the French parliament in EU politics,29 and in its decision of 9 April 1992, the Constitutional Court even stated that a greater parliamentary empowerment represented a precondition for the legal compatibility of the Maastricht Treaty with the French constitution.30 Similar to Art. 23 of the German constitution, the newly inserted Art. 88-4 CF provides for the first time a constitutional right for the French parliament to obtain

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information on EU matters from the government. The executive is required to transmit any drafts of (or proposals for) instruments containing provisions which are matters for statute as soon as they have been transmitted to the Council of the European Union. The original version of Art. 88-4 CF only provided for a governmental transmission of drafts with a pure legislative character, i.e. proposals which would have been subject to parliamentary legislation if they were domestic legal acts.31 However, the 1994 Act Pandraud stipulated that the government should inform the Assemblée Nationale beyond these legislative documents and that the parliament had to be kept up-to-date about the stage of negotiation in the Council. This extension of the parliamentary right to obtain information was inserted in Art. 88-4 when it was revised in 1999 as part of the ratification of the Amsterdam Treaty. Thus, compared to the Bundestag, the Assemblée Nationale’s constitutional right for extensive information has existed only since 1999. Moreover, it only constitutes an opportunity to be informed, since the scope of information provided is still at the government’s discretion. Like the German parliament, however, the French legislature has a constitutional right to act on this information by voting on parliamentary resolutions. These resolutions may only relate to documents with legislative character and are not legally binding.32 A ministerial circular of 1994 introduced the parliamentary scrutiny reserve. It obliges the government to grant a time span of one month to the parliament for stating its opinion on legislative proposals before decision-making in the Council and to postpone Council meetings accordingly.33 Similar to the Bundestag, the Assemblée Nationale has thereby been given the opportunity to react to an EU legislative proposal in a manner which ensures that its opinion can be considered before decision-making. In contrast to the German case, however, the latter is not obliged to take the parliament’s position into account. However, the Assemblée Nationale’s Standing Orders stipulate in Art. 151-4, that the government shall inform the parliament concerning the actions taken following upon resolutions adopted by the Assembly. But while the legal framework in both Germany and France provides de jure for participatory rights for the whole chamber, these rights are de facto mainly exercised by the respective EU-specific parliamentary bodies in the Bundestag and the Assemblée Nationale. Institutions of parliamentary participation: EU-specific parliamentary bodies The Committee on European Union Affairs in the Bundestag In the Bundestag, the central player in EU affairs is the Committee on European Affairs as institutionalized by the newly inserted Art. 45 GG in 1992. In the 15th electoral term, the EAC had 33 members representing – like in other committees – proportionally the strength of the different party groups of the Bundestag. The chair of the EAC is usually a representative of the parliamentary opposition. In addition, 15 German members of the European parliament (MEPs) have been regular members of the committee, which makes the EAC by far the largest of all

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parliamentary committees in the Bundestag. The appointed MEPs have a right to speak, but not to vote. The work of the EAC is organized in a similar way to those of other parliamentary committees. During weeks of parliamentary sittings, it usually meets once a week on Wednesday afternoon. Meetings are generally not open to the public, but the EAC can decide to open certain meetings or to hold public hearings. Like other committees, the EAC is supported by a committee secretariat. With 18 staff members, the EAC secretariat used to be the biggest of all committee secretariats (in the 14th electoral term),34 but the number was reduced to six in the 15th electoral term when the work of the European Convention was finished. Since 1999, the Europabüro, which is exclusively responsible for administering the incoming EU documents, has become an integral part of the secretariat and has four staff members. According to §93a, Section 1 and 2 of the Bundestag’s Standing Orders, the EAC is responsible for the treatment of all incoming EU documents. In this perspective, it is the main addressee of the documents transmitted by the federal government under Art. 23 Section 2 GG. Depending on the topic addressed in the legislative proposal, the chair of the EAC suggests its transmission to a specialized committee which shall be mainly responsible for its further treatment (Federführung). In most cases, the EAC is then co-responsible. Its main activity is provided for in cases of ‘horizontal’ issues and core issues of the integration process like the Charter on Fundamental Rights, budget issues or institutional reforms as highlighted in the Constitutional Process. Moreover, it has a coordinating function for issues that cut across different policy sectors. 35 The Committee also plays a central role with regard to the Bundestag’s right to state an opinion on EU issues according to Art. 23 Section 3 GG. According to Art. 45 GG, the EAC can be empowered to exercise the rights of the Bundestag visà-vis the federal government, i.e. to state a (politically) binding opinion at the plenary. In this case, the government must take the committee’s position into account to the same extent as a position of the Bundestag which has been decided upon in the plenary. Thus, the Bundestag can delegate its powers to the EAC in order to accelerate the treatment procedure and thereby react appropriately to urgent matters.36 Moreover, according to §93a, Section 3 of the Standing Orders, the EAC can generally state an opinion on an EU document unless one of the specialized committees objects to it. Another special right of the EAC is the ability to appeal for amendments to recommendations for decision by specialized committees if EU matters are concerned, which is a guarantee that general aspects relating to European integration are also considered.37 Moreover, the EAC can convene special meetings even outside weeks of parliamentary sitting depending on the EU’s agenda.38 In sum, its constitutional basis, its special rights and its administrative resources make the EAC a central player in the Bundestag’s participation in EU politics. The Delegation for the European Union in the Assemblée Nationale In contrast to the German constitutional provisions, the French constitution does not refer to a specific parliamentary body in EU affairs. However, a

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Delegation for European Affairs was established in 1979 in both chambers of the French Parliament39 and was re-named ‘Delegation for the European Union’ in 1994. Because the number of parliamentary committees is constitutionally restricted, the new parliamentary bodies have been assigned the status of a delegation, which puts them in a subordinate position vis-à-vis the standing committees. It has nevertheless managed to develop its former role as a purely consultative body into that of a kind of ‘watchdog’ in European politics.40 The insertion of Art. 88-4 into the French constitution and the various legal provisions enacted in the 1990s have had a positive impact on the Delegation’s development. The legal basis of the DUE’s current status is Act No. 79-564 of 6 July 1979 as amended by two subsequent acts in 1990 (Josselin Act) and 1994 (Pandraud Act),41 which stipulated that a Delegation for the European Communities should be created in each assembly. As a result, a new article was inserted in Regulation No. 58-1100 on the functioning of the parliamentary chambers. Details are regulated in Art. 151-1 to Art. 151-4 of the Assemblée Nationale’s Standing Orders. Since 1990 the DUE has consisted of 36 members, who are appointed proportionally by taking into account both membership in the parliamentary committees and in the various party groups. With regard to committee membership, the Foreign Affairs Committee is most prominently represented in the DUE (11 members), followed respectively by the Committee for Cultural Affairs and the Legislative Committee (7 each), the Committee on Economic Affairs (6), the Defence Committee (3) and the Budget Committee (2). This appointment of DUE members aims at establishing an intrinsic link to the parliamentary committees and at having a broad spectrum of policy-specific expertise in the delegation.42 In contrast to the German EAC, French MEPs are not official members of the DUE, but may also attend its meetings and have a right to speak as well as consultative voting rights. Like the standing committees, the DUE generally holds one to two meetings a week during the parliamentary session. Similarly to the EAC’s rules of procedure, DUE meetings largely follow the same pattern as standing committee meetings in the Assemblée Nationale. The agenda includes the examination of reports and opinions or the holding of hearings. DUE meetings are not open to the public, but minutes are published regularly on the internet.43 In the 12th electoral term, the DUE was also supported by an important administrative staff of around 22 persons, the division on the European Communities and the European Union.44 According to Art. 6bis of regulation No. 58-1100, the DUE is responsible for ‘observing the work of the organs of the European Union’. The DUE describes itself as having a threefold task of ‘information, analysis and control’.45 According to its function of informing the chamber on EU affairs, the DUE is – like the German EAC – the central addressee for all incoming EU documents which have been transmitted by the government. However, its status does not allow the DUE to treat EU legislative proposals as the responsible parliamentary body. While the standing committees thus have the final say on how EU issues are dealt with, the DUE has nevertheless a central role for examining incoming documents. Its

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function of informing the committees on the contents and importance of EU items transmitted by the government requires a systematic and substantial analysis of all incoming documents and allows for the de facto exercising of a sifting function. The DUE therefore also disposes of the exclusive right to raise the parliamentary scrutiny reserve. Finally, it enjoys some rights which are similar to those of the standing committees, e.g. the right to convene outside the parliamentary sessions, the right to hold hearings of members of government, the right to obtain information on the stage of negotiation, and the consideration of parliamentary resolutions by the government or the right to acquire information on EU issues independently of the government.46 Moreover, it may formulate the drafts for parliamentary resolutions which will eventually be decided upon in the standing committees. Finally, while all MPs may initiate a resolution on EU issues, the Assemblée Nationale’s Standing Orders provide the DUE with the right to suggest amendments to proposals of individual MPs. In sum, despite its subordinate legal status, the DUE is a key player in the Assemblée Nationale’s participation in EU politics.

The ‘living constitution’: the use of opportunities and the level of involvement of the Bundestag and the Assemblée Nationale in EU affairs The scope of information about EU issues available to German and French MPs The scope of information available to MPs is crucial for exercising an effective scrutiny of executive action in EU politics. What is more, given that EU policymaking follows a political agenda different from domestic ones, the point of time at which MPs receive the information significantly impacts on their ability to exert control. Information on EU issues is usually transmitted by the executive, but legislatures may also acquire information independently. The transmission practice of the governments As there is no federal ministry for European affairs in Germany, it is the federal ministry of finance which has the overall responsibility for the coordination among ministries, the reception of EU documents and their official transmission to the Bundestag. Documents include draft regulations and proposals for directives relating to the EC and to Justice and Home Affairs (JHA), i.e. the first and the third pillar. Information on Common Foreign and Security Policy (CFSP), the second pillar, is, however, provided by the Foreign Office. The parliament thus officially receives about 650 Council documents per year on average from the federal government, with the steady increase in the number corresponding with the increasing legal output of the EU.47 Adding the decisions officially transmitted by the EP, the respective annexes and corrigenda, the Bundestag receives about 25,000–30,000 documents per year.48 All further information, like other Council documents and

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minutes of the working group meetings, is transmitted to the Bundestag by the responsible ministerial departments. Every document transmitted is accompanied by a detailed explanatory memorandum informing the responsible committees about the necessity of a European rule, the financial implications and the timetable for decision-making. The departments generally transmit these memoranda within the time limit, but the scope of explanatory information varies slightly between different policy sectors.49 In addition, members of government participate regularly in EAC meetings and inform MPs about the current negotiations in the Council and about European Council meetings. However, up to the 14th electoral term, the Bundestag received information about EU issues at a relatively late stage of the legislation process. The duration for transfer of EU documents could reach 42 days.50 Since the introduction of a digital transmission system in the 15th electoral term, however, transmission has been accelerated to a maximum duration of 14 days.51 In contrast to the German practice, the French system of EU document transfer is organized and coordinated by a specific institution for EU affairs, the Secrétariat general des affaires européennes (SGAE, formerly known as SGCI). As with the Bundestag, this information includes draft proposals of the first and the third pillar, whereas documents concerning CFSP are transferred by the Foreign Ministry. However, as mentioned above, the State Council (Conseil d’État) examines the legal quality of each document before it is transmitted to the parliament. The latter subsequently receives all documents characterized as having a legislative character, on which it may vote a resolution. The so-called ‘E-documents’ represent 80 per cent of all the legislative proposals; but with 220 documents on average per year, the number is relatively small compared to the Bundestag.52 It has, however, increased continually since 1992, which can be explained not only by the increasing EU legal output but also by a more ‘parliament-friendly’ jurisdiction of the Conseil d’État. In addition, the SGAE and the Foreign Ministry also transfer draft proposals which do not have a legislative character as well as other documents like the Green and White Papers, the working program of the Commission and the agenda of the Council meetings. In the context of the annual number of nearly 3,000 transmitted documents,53 the Assemblée Nationale receives proportionately far less information than the Bundestag. Moreover, the SGAE adds no explanatory memoranda to the documents, and the parliament receives no information about the important deliberations at the level of the permanent representations or on the negotiation processes in the Council.54 Even oral information is not given in a very extensive way,55 and members of government do not participate regularly in DUE meetings. With regard to the timeliness of transmission of documents, there have been important delays due to the involvement of the State Council in the first years after the insertion of Art. 88-4 CF. This delay was, however, significantly reduced throughout the 1990s.56 But, as the DUE points out, the French government still makes frequent use of the procedure of the emergency examination procedure at the expense of the parliament.57

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Own parliamentary activities to acquire information about EU issues Despite the high number of EU documents officially transmitted by the government, the Bundestag – and most prominently the EAC – also actively pursues and acquires information on EU issues on its own. First, both in the 14th (1998–2002) and the 15th (2002–5) electoral terms, most of the 25 meetings per year on average were at least partly dedicated to the hearing of experts, including MEPs, Commissioners, scholars and members of foreign governments. Second, in the same time periods, EAC delegations regularly travelled to EU institutions, other European parliaments and countries holding the presidency of the Council.58 Third, the EAC has strived for a stronger involvement in ex post control and has recently managed to introduce a new procedure according to which it deals twice a year with the stage of transposition of EU directives.59 Fourth, in order to obtain information from the government, EAC members frequently consult members of the federal government who participate in the council meetings. However, according to a member of the committee, they do not necessarily insist on an earlier transmission of relevant EU documents.60 By the same logic, MPs do not put formal pressure on the government by frequently using their general parliamentary control rights. In the 13th and 14th electoral terms (1994– 2002), only 6.3 per cent of the Große Anfragen – a traditional interpellation right – concerned EU matters.61 In the same time period (13th and 14th electoral terms), only 8 out of 243 Aktuelle Stunden were used to get information about current EU issues. In sum, German MPs do not use their information rights on EU issues as a means to put pressure on the government with regard to the scope or the timeliness of the latter’s transmission practice but as a way to acquire information beyond that which is normally transmitted by the executive. In general, the Assemblée Nationale has the same opportunities to actively acquire information about EU issues as the Bundestag. The literature claims that the DUE makes intensive use of its right to hold hearings of experts and in particular of the minister on European affairs.62 First, between 1993 and 2002, 15–20 expert hearings on average per year have taken place,63 including members of government, scholars, representatives of interest groups and members of the EU institutions. Second, members of the DUE travel regularly to EU institutions, to COSAC meetings or to EU bodies of other national parliaments in order to get additional information.64 The Assemblée Nationale has even opened a permanent office in Brussels, which informs the parliament about upcoming EU legislative proposals and organizes ‘internships’ for French MPs.65 Moreover, it was one of the ‘pioneers’ in developing the role of an ex post watchdog in EU affairs. Given the bad transposition record for EU directives in France, the DUE has initiated the annual publication of the state of transposition, thereby pinpointing administrative inefficiencies in certain ministries.66 Apart from these activities aiming at a general gathering of information on EU issues, French MPs use their interpellation rights in European matters. Since the beginning of the 12th electoral term in 2002, 24 of the hour-long ‘Questions au gouvernement’ sessions were exclusively dedicated to European issues and more than 170 questions concerning EU issues were raised during these question hours. This is a dramatic increase compared to the 11th

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electoral term.67 The different numbers can be traced back to both the importance of the EU Constitutional Process in the 12th electoral term and to different statistical methods used by the DUE in the electoral terms. Generally speaking, we can at least conclude that French MPs are more willing to invoke interpellation rights for acquiring information on EU issues than their German counterparts. Scrutinizing the government: examination and evaluation procedures of EU documents Procedures within the Bundestag After reception of the draft proposals and other working papers, the employees of the Europabüro of the EAC secretariat establish a list of all available EU documents which is transmitted to all specialized committees. The chair of the EAC then proposes each document for which the committee should have the main responsibility and which committees are co-responsible.68 The Europabüro does not evaluate documents or select them according to their relevance.69 The necessary selection procedure is provided rather by the responsible committees, which apply very different selection criteria.70 But, in every committee, only about 5 per cent of the transferred documents enter the stage of deliberation.71 This means that 95 per cent of the transferred EU documents are not printed as official Bundestag documents and can therefore not be examined in public debates. Moreover, EAC meetings are mainly used for holding hearings and for a regular questioning of government members rather than for an intensive deliberation on individual EU documents. The EAC has actually never used its right to hold special meetings for dealing with EU documents, but only for hearing the government on current EU topics.72 The same holds true for its power to move amendments to a recommendation for a decision submitted by specialized committees. The EAC has never used this right, since the cooperation between specialized committees and EAC is generally good.73 With regard to the Bundestag’s response to information about EU issues, German MPs usually inform the government about their position in an informal way during plenary or committee meetings. As mentioned above, the specialized committees develop a formal parliamentary position in only 5 per cent of the received documents. These recommendations for resolutions are transmitted to the plenary, which usually adopts them without further debate or suggestions of amendments.74 If a resolution on an EU document is decided to be the object of a public debate, this debate often takes place in connection with other, even national, bills (verbundene Debatte). This practice does, however, not favour the consideration of the parliamentary position on the European level. On the one hand, the position of the Bundestag on one specific EU document is difficult to seize for the government. On the other hand, a resolution might not be voted on before a Council’s decision because the plenary is waiting for other bills until it holds a public debate.75 While the EAC has the power to prevent a situation in which the parliamentary position is only articulated after a Council’s decision, by voting a plenary-replacing decision, it has hardly ever made use of this right. In the 14th

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and 15th electoral terms, the EAC voted on five plenary-replacing decisions on the basis of an agreement with the specialized committees. Three of them were related overall to the Constitutional Process, while the remaining two concerned the financial interest of the EU and further development of the EU’s anti-fraud office.76 The EAC has, however, never been directly empowered by the plenary to state an opinion. Hölscheidt assumes that this is due to the inefficiency of the procedure itself.77 In general, however, it could be argued that the EAC has become more willing over time to use its special powers in cooperation with the specialized committees. Regarding the small number of recommendations for resolutions of the specialized committees, the deliberation practice in the plenary and the overall rare use of special powers by the EAC, the Bundestag is not a very active player in EU affairs. Even in the follow-up of resolutions, the Bundestag does not ask for a regular report by the ministers in times of a heavy workload.78 Moreover, there have been no regular debates on the government’s reports on European integration, which include information about the consideration of the Bundestag’s positions. Procedures within the Assemblée Nationale The parliamentary procedures for examination of EU documents are mainly handled by the DUE. As in the Europabüro, the secretary of the DUE first makes a list of all received documents, according to which the specialized committees choose documents for deliberation. But the DUE also contributes actively to the selection and evaluation procedures. First, the provisions of Regulation No. 581100 state that the DUE has to examine in detail all legislative proposals for the EU. Second, it publishes monthly its own ‘Selection of documents of the European Union’. This selection, which is transmitted to all MPs and to the committees, contains the EU documents considered as being important, as well as a brief analysis.79 Third, the DUE submits analyses and evaluations of all further documents the committees wish to deliberate on. Some studies assume that the DUE actually analyses the political, legal and financial relevance of all received documents.80 These analyses are published in the information reports (rapports d’information) which contain details on the objective of the legislation proposals, its effects on the domestic legal system, the possible reaction of concerned interest groups and the timetable.81 The information reports and EU documents are examined and voted on during the meetings of the DUE. The documents treated within the DUE are then transmitted to the specialized committees for further deliberation. This double examination of European proposals does not favour a quick procedure.82 It guarantees, though, an intensive analysis of the documents considered relevant for parliamentary scrutiny. The activity of the DUE goes even beyond analysing specific EU documents. It also publishes detailed reports on COSAC meetings and on issues of specific interest for the Assemblée Nationale or on current EU topics like the Constitutional Process.83 Moreover, members of the DUE make use of their right to deliver an opinion or to move an amendment on resolution proposals of a committee.84 And since ‘rejection of a délégation’s views or

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proposals has become an extremely rare event’85 cooperation between the DUE and the specialized committees is satisfactory overall. In general, since the DUE has not the status of a committee, there is not much potential for conflict. Apart from the informal transmission of the parliament’s position to members of government, the Assemblée Nationale makes regular use of its ability to formally state an opinion, though this has decreased over time. While it adopted resolutions on about 5–10 per cent of the transmitted documents or once per month in average in the 10th electoral term (1993–7),86 the number decreased to around 2–5 per cent or every two months on average in the 11th electoral term (1997– 2002).87 Interestingly, while the number of resolutions tended to be equally low at the beginning of the 12th electoral term (2002–ongoing), it increased again in 2005 with 13 resolutions voted on in that year.88 Compared to the continually increasing number of transmitted documents, however, it is still small. Issues on which resolutions are voted on mainly refer to budgetary questions, agricultural and external trade policy and public service issues. Since the DUE initiates more than 90 per cent of all proposals for resolutions, it is the most active parliamentary body when it comes to the parliament’s response to information on EU issues. These proposals are transferred to the responsible committee, which may either adopt the resolution in the place of the Assemblée Nationale, or transfer it to the plenary for a public vote. During the 10th electoral term, about 40 per cent of the recommendations for resolutions were transmitted to the plenary, which usually adopts the resolution without further suggestions for amendments. But in contrast to the Bundestag, there is always a public debate on the specific legislative proposal.89 Like the overall number of adopted resolutions, the number of those discussed in public session progressively decreased in subsequent electoral terms. Despite its obligation to report on the follow-up of resolutions,90 the government hardly does so. Only in some cases has an explanatory note been transmitted to the Assemblée Nationale.91 Moreover, some scholars argue that French MPs check the extent to which their position has been considered when it comes to the stage of transposing an adopted EU directive into national law and might delay transposition accordingly.92 In sum, however, compared with the Bundestag, the Assemblée Nationale is more active in responding to information on EU affairs, since it states more official opinions than the Bundestag on the basis of a smaller number of documents.93 Informing the citizen: the communication of European affairs Apart from controlling the executive, parliaments also exercise a communication function vis-à-vis society. This is particularly true in the area of EU politics, in which legislatures have not only to scrutinize governmental politics but also to inform the public about EU issues and the EU-related work of the parliament, which sometimes can seem quite opaque to a general audience.

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The communication of European issues in and by the Bundestag There are various possibilities to debate European affairs on the floor of the house, which the Bundestag has not used very frequently though. During the 14th and the 15th electoral terms, European issues were discussed in 12 public debates per year on average.94 Most of these debates were not initiated by MPs though, but took place after government’s information was supplied on European Council meetings. Moreover, as mentioned above, MPs do not use their interpellation rights in an intensive way. In the 14th electoral term, only eight out of 98 Große Anfragen and four out of 140 Aktuelle Stunden concerned European issues.95 The plenary also hardly discusses recommendations for resolutions. Moreover, MPs do not regularly debate the opinions the EAC articulated for the Bundestag in the plenary.96 As mentioned above, there are no regular debates about the government’s report on European integration. And during the so-called verbundene Debatten, the practice of treating several documents together, documents with domestic concern are more intensively deliberated on than those concerning European politics.97 The German Bundestag is far more active in communicating European issues outside the plenary. It is primarily the EAC which has made considerable efforts to make its work public and transparent. During the 14th and 15th electoral term, every fourth EAC meeting on average was accessible to the public.98 In contrast, and despite their main responsibility for deliberating on EU documents, the specialized committee meetings are usually closed to the public. The EAC also actively publicizes both European issues in general and also the Bundestag’s activities. It publishes a series of documents including the minutes of public debates on European issues, an overview of the most important results of EAC meetings, and information about current European topics, and further information about the Bundestag’s role in European affairs and the work of the EAC is presented in detail on the EAC website.99 Some members of the EAC actually claim that in certain periods, the communication of European politics carries more weight than the control of the government.100 Again, however, there are no similar activities performed by the specialized committees. The communication of European issues in and by the Assemblée Nationale As in the Bundestag, there are many ways to debate European affairs in the plenary.101 Since the introduction of Art. 88-4 CF, public debates on EU issues take place regularly.102 For example, the Assemblée Nationale discusses once a year the scope of France’s financial contribution to the EU. Taking together EU-related questions from MPs, resolutions adopted in the plenary and EU-related public debates, EU issues were explicitly evoked 26 times in public sessions in the 11th electoral term. This is less than in the Bundestag in the same period, but the number has dramatically increased in the 12th French electoral term, as mentioned above. What is more, the share of parliamentary initiatives for a public discussion of European issues is higher: in contrast to the German parliament, the

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French government rarely reports about European politics. There are thus fewer opportunities for the Assemblée Nationale to initiate a debate simply as a reaction to a government initiative, as is often the case in the Bundestag. In fact, most of the cases in which European issues were object of a public debate were initiated by MPs within the context of the Questions au gouvernement, which are intensively followed by the public.103 Concerning the public debate on parliamentary resolutions, there is a very different practice according to the composition of the parliament. While the share of resolutions adopted in the plenary was around 40 per cent in the 10th electoral term, it decreased to 18 per cent in the 11th electoral and about 15 per cent in the 12th electoral term.104 Moreover, the literature claims that resolution debates are often timetabled when MPs have either not returned from their constituencies or have gone for the weekend. 105 However, the Assemblée Nationale actively communicates EU issues outside the plenary. As with the Bundestag, it is the DUE which aims to make its work transparent and to inform the public about EU topics. It regularly organizes public hearings, and publishes the minutes of its meetings on its website. Thus, even though the DUE does not have the right to open its meetings to the general public, it offers citizens the opportunity to be well informed about its work. This is even more important as the committees usually adopt the DUE’s view. Furthermore, the information reports of the DUE are printed as official Assemblée Nationale papers and are therefore accessible by the public. The DUE also distributes them to the press and interest groups.106 In addition, the ‘Selection of documents of the European Union’ is published on the website and is frequently used by authorities and external organizations.107 In general, the website of the Assemblée Nationale grants an important space for European affairs. In sum, the French parliament seems to be slightly more active in communicating EU issues than the Bundestag. Both parliaments have however played an active role in informing the citizen about the Constitutional Process. Parliamentarizing Europe: the role of the Bundestag and the Assemblée Nationale in the Constitutional Process As mentioned above, the Bundestag was one of the strongest advocates of debating the future challenges of the EU resulting from ‘deepening’ and ‘widening’ in the framework of the Convention. According to the Bundestag, it should be organized following the example of the Convention on the Charter of Fundamental Rights, thereby allowing for a broad parliamentary participation. The Bundestag was supported in its claim during the XXIV COSAC meeting in May 2001 in Stockholm by both the EP and the delegations of the French Assemblée Nationale and the French Senate. Moreover, the German EAC and the French DUE issued a joint declaration to the European Council in December 2001 demanding that a broad mandate should be granted to the Convention (eventually resulting in a draft constitution). In the Convention, both the Bundestag and the Assemblée Nationale were represented by high-profile members of their EU-specific parliamentary bodies

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with a profound expertise in EU politics. Representing the Bundestag were Jürgen Meyer (SPD), former vice-chairman of the EAC, and his alternate MP Peter Altmaier (CDU), members respectively of Working Group I on subsidiarity and Working Group V on complementary competencies. The Assemblée Nationale, on the other hand, was represented by the chairman of the DUE, Pierre Lequiller (UMP), member of Working Group VII on external action and Jacques Floch from the Socialist Party, a member of Working Group X on freedom, security and justice. Both the Bundestag’s and the Assemblée Nationale’s delegates were actively engaged in the work of the Convention and issued various oral and written contributions and amendment proposals to draft articles of the CT. On the domestic level, both parliaments initiated a broad information campaign and an internet platform for discussing the future of the EU in the wake of the Convention. The Assemblée Nationale’s DUE organized a public debate on the future of the EU, including the development of an online questionnaire and a weekly hearing of European experts. The website of the Assemblée Nationale provided much space for communicating the work of the Convention, including various information reports, links to the Convention, minutes of Convention-related DUE meetings and other related activities of French MPs.108 The corresponding informational activities of the Bundestag – and the EAC in particular – were even more intensive.109 Apart from policy-specific deliberations in the EAC, six of the EU-related plenary debates in the 14th and 15th electoral term dealt with the work of the European Convention. Public hearings of Convention members were organized along with direct discussions on internet platforms. The various party groups organized public information meetings concerning the Convention and the future of the EU. Numerous documents were made available on the Bundestag website. The Constitutional Process was an important focus of the EAC’s deliberations; it was mainly responsible for treating issues concerning the Constitution-making process. With both parliaments, again, we observe however rather little interest in the Constitutional Process outside the EU-specific bodies. The subsequent stage of ratifying the Constitutional Treaty made a revision of the legal framework underlying the Bundestag’s and the Assemblée Nationale’s participation in EU affairs necessary. The protocols on the role of national parliaments in the European Union and on the principle on subsidiarity actually provided for additional scrutiny rights of domestic legislatures.110 They should, for example, get more comprehensive information on legislative proposals and related documents directly from the Commission and were granted the instrument of an ‘early-warning mechanism’ for assessing the application of the principle of subsidiarity. While the revision in the Bundestag resulted in only slight modifications in the Act on the Cooperation between the Federal Government and the German Bundestag in EU Affairs, constitutional amendments became necessary in France. The introduction of a further Art. 88-5 and 88-6 in the Constitution had been planned for the case of ratification, stipulating that the French assemblies may issue reasoned opinions concerning the application of subsidiarity in individual proposals and veto specific changes to the formal

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decision-making rules in the Council.111 Following President Chirac’s decision to submit the Constitutional Treaty’s ratification to a national referendum and the subsequent public debate in France, the parliamentary work of the Assemblée Nationale became less important compared to the Bundestag. It nevertheless continued debating the Treaty and initiated debates after its rejection in the referendum.112 In sum, the Constitutional Process has constituted a new field of activity for the Bundestag and the Assemblée Nationale, and for the EAC and the DUE in particular. Both parliaments have been very active with regard to their information and communication function during the process. Compared to the general level of the Bundestag’s involvement in EU affairs in particular, it has been very actively engaged in the Constitutional Process.

The impact of the executive–legislature relationship on the level of parliamentary involvement in EU affairs The strengthening of both the Bundestag and the Assemblée Nationale in EU affairs was designed as an empowerment vis-à-vis the executive, since the latter has been granted important competencies at the expense of the parliament. However, neither in France nor in Germany did the parliamentary empowerment result in a major shift of domestic executive–legislature relationships or in a more confrontational attitude between the two branches of government. As mentioned above, the relationship between the executive and the legislature is very different in the German and French political systems. While we can safely assume that the relationship between the executive and the legislature is more balanced in Germany than in France, the agenda-setting power of the federal government in domestic politics should not be underestimated. This has even been reinforced by the process of European integration.113 However, the existing close cooperation between the parliamentary majority and the federal government has remained largely unaffected by this executive empowerment. The cooperation apparently persists in European affairs, despite the loss of influence of the parliamentary majority in this policy area. For example, the plenary-replacing decisions drafted by the EAC did not criticize the government’s position on European politics, but referred mainly to institutional questions. The same holds true for EU-related debates in public sessions, which are not characterized by a very confrontational atmosphere. As mentioned above, MPs do not frequently use formal control rights or put informal pressure on the government, even at times when they receive information only after considerable delays. Thus, as in the domestic context, the parliamentary majority continues to be reluctant to control the government properly. This can also be observed in the parliamentary opposition, which makes equally infrequent use of control instruments in EU affairs. In this perspective, the empowerment of the parliament in EU policy-making has paradoxically resulted in an even closer cooperation between the executive and the legislature.114 In French domestic politics, the government has many prerogatives which restrict the autonomy of the parliament. The prerogatives of the executive vis-à-vis the

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legislature are also obviously present in EU politics, in which the government has the role of a ‘gate-keeper’. As mentioned above, the scope of information made available to the parliament still lies in the discretion of the government, and explanatory information is not systematically provided. The little information on the follow-up of parliamentary resolutions and the rather frequent use of emergency examination procedures are further examples of the powerful position of the executive in EU policy-making processes. The analysis has however shown that the DUE actively tries to compensate for the comparatively limited scope of information made available by the government, e.g. by compiling much of the information which the Bundestag receives from the federal government as an explanatory memorandum, by issuing information reports to the MPs on current EU issues or by initiating deliberation on EU-related topics in public sessions. The French parliament is also more present at the European level than the Bundestag.115 However, compensation must not be understood as competitiveness in this respect. The comparatively more active use of the new opportunities and bigger scope of EU-related activities by the Assemblée Nationale cannot be explained by a stronger rivalry between the executive and the legislature in France. The constitution of the Fifth Republic has established the fait majoritaire that is the close cooperation between parliamentary majority and government. The literature even claims that this cooperation goes so far that the government agrees ex ante to a parliamentary resolution for having a diplomatic instrument in Council negotiations.116 As in the Bundestag, the lack of tight formal scrutiny can even be observed within the parliamentary opposition, which does not use the tabling of resolutions as a means to criticize the government.117 Equally, the questions to the government during parliamentary question hours related to EU issues are mainly asked by members of the coalition parties, which do not intend a confrontation with or a formal control of the government.118 Rather than being a means for sanctioning the government, the Assemblée Nationale’s more active use of its scrutiny and participatory rights can be explained by the unique nature of this empowerment. The provisions of Art. 88-4 CF actually represent an opportunity to enhance its institutional standing in the domestic political system. First, in contrast to domestic affairs, the Assemblée Nationale receives much information concerning the European legislative process, even if the proposals do not correspond to a policy area in which parliament would have a say if it was a domestic one. At least in policy areas, the scope of information provided by the French government in EU affairs is broader than in domestic affairs. Second, the right to vote on resolutions constitutes an even more important innovation in this respect.119 In the Fifth Republic, the French parliament only has the right to vote on resolutions concerning the organization of the parliamentary work, but not on domestic policy issues. Since Art. 88-4 has been introduced in the French Constitution, the Assemblée Nationale has an exclusive right to articulate its position concerning European issues, which it does not have for domestic affairs. The fact that this right has been rather actively used during the first electoral term after its introduction can thus be explained by the fact that it empowered the parliament even beyond the status quo ante.

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In contrast, the new scrutiny instruments provided to the Bundestag by Art. 23 GG mainly serve to approximate the status quo ante, but do not empower it beyond the previous domestic position. However, a new right which does not correspond or approximate the status quo ante is the power of the EAC to state an opinion in place of the Bundestag, since it provides a type of flexible reaction the parliament does not have in domestic affairs. The analysis has shown though that the EAC does not frequently invoke this right. In sum, the empowerment of the Bundestag and the Assemblée Nationale has not resulted in an enhancement of the legislature vis-à-vis the executive. If there has been a Europe-induced change to the domestic model of the executive–legislature relationship, it has been one of a stronger cooperation between the two branches of government. As some scholars point out, national MPs understand that a very confrontational interaction between government and parliament could undermine the effectiveness of European governance and the effective representation of domestic interests.120 In the French case at least, the incentive for using EU-related scrutiny rights seems to rely more on the unique nature of this empowerment than in the willingness to tightly control the executive. However, given that this factor can only explain why national parliaments exercise a specific type of scrutiny (the use of new rights) in a certain time period (directly after the empowerment, i.e. as long as they are new) and that the Bundestag’s EAC did not directly utilize its new right of plenaryreplacing decisions, additional factors seem also to impact on the nature of the German and French parliamentary scrutiny.

Europeanized member states? The importance of Europe in Germany and France and its impact on parliamentary involvement in EU affairs As two of the six founding member states, French and German political systems and cultures have been deeply entrenched in the process of European integration as it has developed. But the processes of adaptation to Europeanization have at the same time occurred in a different way and have also resulted in different outcomes. In both cases however, the overall salience of EU issues has a significant impact on the level of national parliamentary involvement in EU policy-making. The salience of Europe in Germany Europe in public debates and elections The German political culture is often described as being very consensual, with conflicts being solved in a cooperative way between strongly developed intermediate institutions.121 This observation has also been made with regard to European issues: the early literature on public opinion concerning European integration characterized the German case especially as exhibiting a ‘permissive consensus’ in favour of European integration.122 Since the early stage of European integration, Germany’s participation has always been conceived by political elites as being in its vital interest. This consensus holds mainly true, however, if we look at political elites

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and political parties, while the German population is more divided.123 The German public generally supports the process of European integration, though it does not figure among its most enthusiastic advocates. According to the most recent Eurobarometer survey, support for EU membership is slightly above the EU average.124 Paradoxically, while the majority of Germans is generally in favour of membership, they are not convinced to the same extent that Germany has benefited from being an EU member state: with 43 per cent thinking that their country has not benefited from membership, Germans are far more sceptical than the EU-25 average (33 per cent), though a narrow majority still has a positive attitude (50 per cent).125 Looking at the evolution over time, we find that support for European integration has slightly decreased since the beginning of the 1990s.126 These numbers seem to indicate that the German population overall supports the principle of European integration, but is not sure about the actual costs and benefits of EU policies. This uncertainty has however not resulted (yet?) in broad public debates about European politics. A prominent example is the Constitutional Process: neither the work of the European Convention nor the ratification of the Constitutional Treaty has resulted in a broad public debate with clear-cut cleavages between opponents and proponents (as was the case in France).127 The same holds true with regard to the salience of EU issues in domestic election campaigns. Since there are no distinct cleavages within the society with regard to EU politics, it is not a topic which is profitable to deal with in electoral terms.128 Equally, turnouts for elections to the EP are actually around 30 per cent lower than elections to the Bundestag. EU issues are thus overall not a subject prone to politicization in the German political culture. Europe within the Bundestag This is particularly true if we look at the Bundestag. We also find a kind of ‘cooperative culture’ in the attitudes towards European integration of the parliamentary parties. Since the 1960s, there has been no anti-European party in the Bundestag. The parliamentary majority and the opposition generally agreed on Germany’s membership in the EC/EU and active support for further integration as being in Germany’s national interest.129 In this perspective, an interparliamentary conflict about European politics was considered as inappropriate. In fact, the coalition parties stated in 2000 that agreeing on this consensus means respecting and protecting German national interests.130 Some scholars explain the passive role of the Bundestag before the treaty of Maastricht precisely by this lack of opposition towards European integration.131 The ‘permissive consensus’ granted a great autonomy to the respective governments in European politics. Moreover, even if the public support for European integration diminished in the 1990s there is still no anti-European or even very Euro-sceptic party in the Bundestag.132 Public debates on EU issues in the plenary often reflect this broad consensus. Thus, the Bundestag ratified the Constitutional Treaty with an overwhelming majority of 569 in favour as opposed to 23 votes against. Even the small number of opponents did not justify

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their vote with the rejection of European integration as such or with its constitutionalization, but with concerns about the specific contents of the Treaty. Moreover, looking at the EAC, we find that the political differences between members are also less clear-cut than in the specialized committees.133 The ‘permissive consensus’ might be a possible explanation for the more passive role of the Bundestag in European affairs. First, an intensive domestic control of EU policy-making might be seen as a form of scepticism towards the integration process rather than a contribution to solving the democratic deficit. This might also explain the reluctance of the parliamentary opposition to use formal control rights in EU affairs. Second, as mentioned above, participation in EU politics is not very profitable for MPs in electoral terms. This might not only impact on the individual use of scrutiny rights, but also on the overall tabling of plenary debates on EU issues, since controversial discussions are usually not appropriate in this respect. Third, some scholars argue that the consensual political culture feeds back into the parliament, and that the EAC hardly uses its special powers because of the informal rule of an equal standing of the parliamentary committees.134 The salience of Europe in France Europe in public debates and elections French political culture has been described as rather conflictual, with strong political cleavages in the society and a rather weak conflict-solving performance by intermediate institutions.135 European integration has, however, enjoyed an overall high level of public support. But, in contrast to Germany, France’s decision to participate in the integration process was based on the idea of ‘Europe as an extension of French grandeur’.136 This rather Gaullist view of Europe slightly changed under the Mitterrand presidency, which conceived of European identity as being integral to the modern French identity and even argued for establishing a federal Union at the end of the 1980s.137 However, within the context of the ratification of the Maastricht Treaty, scholars perceived a growing Euro-scepticism which was also observed in public opinion polls throughout the 1990s.138 As in Germany, support for membership in the EU and the level of benefits associated with it has decreased in the last fifteen years, though the results of the French survey are generally closer to the EU average than those of Germany, which tend to be below it. The recent Eurobarometer survey indicates that the share of French people thinking that membership in the EU is a good thing is both lower than the German share and the EU average, though it is still 51 per cent.139 However, the benefits from being a member of the EU are more positively assessed and get even better values in France than in Germany, meaning that despite the French veto against the Constitutional Treaty, EU membership is not called into question.140 EU issues have nevertheless been prone to public debates, most prominently in the context of the national referenda on the ratification of the Maastricht and the Constitutional Treaties. In both cases, the

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president’s decision to submit the ratification of the treaties to a referendum resulted in a highly politicized debate on EU politics, with nearly equally matched camps of proponents and opponents. In fact, the Maastricht Treaty was ratified with a narrow majority of 51.4 per cent, while the Constitutional Treaty was rejected in May 2005 by a majority of almost 55 per cent of the votes. But in contrast to the previous referendum, the debate on the Constitutional Treaty was largely driven by conflicts on concrete and substantial EU policy issues rather than by France’s EU membership per se. Even though the debate was not always related to specific contents of the CT, the principle of EU integration and the active role of France was no longer contested, as it had yet been the case in the debate on the Maastricht Treaty.141 Like in Germany, it can thus be argued that the French public firmly supports European integration. In contrast to the neighbouring country, however, broad public debates on specific EU policy issues and discussions of concrete costs and benefits of certain policy decisions for the own country have already taken place. But the level of politicization of EU issues in France must not be overestimated. Thus, the salience of EU issues in domestic elections is generally low. This is also confirmed by the low French turnout in EP elections. Europe within the Assemblée Nationale In contrast to Germany, where public support for European integration decreased in the 1990s while parties in the Bundestag remained unaffected, French political parties reflected the growing scepticism of the French public (and vice versa). Apart from the traditional anti-European Communist Party (PCF) and Front National (FN), opponents of the Maastricht Treaty became powerful within the traditional pro-European parties or even established new parties:142 ‘For the first time, an antiEuropean coalition with a defined message … emerged as a sizeable political force’.143 While pro-European positions continued to dominate the political discourse, it has become legitimate to articulate Eurosceptical positions in the public and to criticize EU politics. The debate on the Constitutional Treaty even accentuated this development: while the former critique of the Maastricht Treaty was mainly attributed to right-wing MPs of the Gaullist party, the Treaty was mainly rejected by a distinct wing of the Socialist party.144 The ‘Maastricht-induced’ change in the attitudes towards European integration within the parliamentary parties has also affected the level of involvement of the Assemblée Nationale in EU policy-making. The rather active role of the French parliament in the post-Maastricht phase can actually be conceived as a reaction to the ‘Eurocritical’ attitudes of French citizens in the 1990s.145 In the 10th electoral term, the RPR – as a party with a distinct wing of Euro-scepticists – actually formed the parliamentary majority. In addition, Philippe Séguin, a popular opponent of the Maastricht Treaty, became president of the Assemblée Nationale. Since other important positions within the Assemblée Nationale (and the DUE in particular) were also given to people of the Euro-sceptic wing of the RPR, it constituted ‘a de facto high-profile platform for Euroscepticism’.146 The active

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participation in EU affairs might thus be explained by a greater willingness of French MPs to control European politics and to articulate their position concerning European issues.147 For example, in contrast to opinions stated by the Bundestag, the Assemblée Nationale’s resolutions often concerned matters of national interest.148 Thus, instead of criticizing the government’s position as mentioned above, resolutions mostly contained a critique of European politics. The fact that the number of resolutions decreased in the 11th electoral term, during which the parliamentary majority was less Eurosceptic, also confirms a relationship between Euroscepticism within the Assemblée Nationale and its level of involvement in EU policy-making. However, the change of government in 2002 did not provoke a significant increase in the level of parliamentary involvement in the current 12th electoral term – with the exception of the Constitutional Process.

Parliamentary involvement in EU policy-making in the ‘old’ Europe: towards convergence? In the context of the ratification of the Maastricht Treaty, both the French and the German legislatures have been significantly empowered with regard to their scrutiny and participatory rights in EU matters. Surprisingly, despite their very different position in their respective political systems, both the formal instruments and institutions provided by this EU-specific empowerment reveal striking similarities. Since the French constitutional amendment of 1999, the compensatory instruments stipulate the same provisions for both parliaments. First, the Bundestag and the Assemblée Nationale have the opportunity to be informed comprehensively about EU policy-making. Second, information has to be transmitted at an early stage of the legislative procedure. Third, both parliaments have the right to state an opinion on legislative proposals before decision-making in the Council and to receive information ex post about the extent to which the government has considered their opinion. The most important difference, however, relates to the fact that important instruments like the parliamentary scrutiny reserve or the ex post information on the consideration of the parliament’s position are only regulated on a subordinate legal level for the Assemblée Nationale, while these rights are constitutionally guaranteed for the Bundestag. Moreover, the German parliament can state opinions with regard to every EU document, while the scope of documents for which the Assemblée Nationale can vote on a resolution is restricted. Just like the instruments available to the German and the French parliaments for participating in EU politics, the functioning of the relevant institutions within the parliaments, i.e. the EU-specific parliamentary bodies, reveals some similarities. Both the German EAC and the French DUE play a central role concerning the activities of the Bundestag and the Assemblée Nationale in EU policy-making. First, they are both responsible for the reception and – though to a different extent – for the examination of incoming EU documents. Second, they have both acquired special powers for an effective use of the new participatory rights, e.g. the French DUE’s right to rise of the parliamentary scrutiny reserve or the German EAC’s

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power to state a plenary-replacing decision. Third, the EAC and the DUE have similar rules of procedure and similar available administrative resources. Given their different legal status, however, the Bundestag’s EAC is more autonomous than the Assemblée Nationale’s DUE and may autonomously decide on the deliberation of EU documents or the issues it recommends go forward to the plenary. Paradoxically, the domestically powerful Bundestag seems to be more reluctant than the rather weak Assemblée Nationale when it comes to the actual use of their new opportunities and their willingness to become involved in EU policy-making. Taking the first years after the empowerment up to the new provisions of the Amsterdam Treaty into account, the German lower chamber did not frequently initiate public deliberations on EU issues during plenary sessions, the specialized committees recommended official resolutions only for a very small number of EU documents, and the EAC hardly made use of its special powers. Moreover, formal scrutiny rights vis-à-vis the federal government were rarely invoked, by either the majority or the opposition. In the same period, the Assemblée Nationale rather actively used its new right to vote on resolutions by issuing one resolution per month on average – despite the smaller degree of information on EU issues available to French MPs compared to their German counterparts. The DUE actually evolved into a kind of ‘watchdog’ of EU politics by becoming the de facto sifting institution for incoming EU documents within the parliament. Beyond the analysis of the legal, financial and political implications of officially transmitted EU documents, DUE members and their staff were actively gathering additional information on EU politics and transmitting it both to the specialized committees and the public. When EU issues were raised during public sessions, these were less likely to be conceived merely as a response to governmental initiatives in the Assemblée Nationale than in the Bundestag. Compared to other national parliaments in the EU, however, the role of the French legislature must not be overestimated. French MPs outside the DUE are still barely interested in EU affairs, public debates are infrequent, formal interpellation rights are rarely used, and the government has important prerogatives for intervening in the parliamentary process. The more distinct willingness to participate in EU policy-making that can at least be observed when comparing the EU-specific parliamentary bodies can be traced back to several factors. First, given the smaller amount of information officially transmitted to the French parliament, the activity of the DUE can be interpreted as a means to compensate. German MPs, on the contrary, are rather comprehensively informed by the federal government. Second, the DUE initially included a higher share of Euro-sceptical members, who were more prone to engage in a tight scrutiny of EU affairs. The ‘permissive consensus’ concerning European integration within the Bundestag’s parties prevented a rigid control. Third, the subordinate legal status of the DUE granted it more room for manoeuvre than was the case for the EAC. The latter was initially reluctant to use special powers given the informal rule of an equal standing of parliamentary committees. But the actual participation of the Bundestag and the Assemblée Nationale in EU policy-making reveals some similarities as well. In both parliaments, the

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EU-specific bodies have become the most active participants in the legislature’s involvement in EU affairs. Both the specialized committees and individual MPs in the two parliaments do not show a distinctive interest in EU affairs. Moreover, neither German nor French MPs use their participatory rights as a means for counteracting their governments. Parliamentary empowerment has rather resulted in a closer cooperation of the executive and the legislature in EU affairs. Looking at how parliamentary involvement has evolved since the late 1990s, we find that the German and French ways of participating in EU affairs even tend to approximate each other. First, while the EAC has recently started to use its power to state plenaryreplacing decisions, the share of resolutions voted on in the Assemblée Nationale has continually decreased. Second, as a result both of better regulations and of the parliamentary-friendly jurisdiction of the State Council, the scope of information transmitted by the French government comes closer to what is made available to German MPs by the government. Third, the delay with which documents are transmitted has also been significantly shortened over time in the Bundestag and the Assemblée Nationale. Fourth, both parliaments have also recently extended their activities to an ex post control and initiated a regular scrutiny of the stage of transposition of EU directives. The reasons for this tendency toward convergence concerning methods for engaging with EU issues can be traced back first of all to processes of interparliamentary cooperation. COSAC meetings in general and bilateral FrancoGerman parliamentary meetings in particular contribute to the exchange of information, and the emulation of ‘best practices’. Moreover, the decreasing activity of the Assemblée Nationale over time might simply result from the fact that it has become used to the initially unique nature of its empowerment and is better able to assess the cost-benefit-relationship of its involvement. Finally, an important role can be assigned to the Constitutional Process. Thus, part of the recent increase in the Bundestag’s EU-related activities was related to the work of the European Convention, since the Bundestag had been one of the strongest advocates for its establishment. The Constitutional Process can also partly account for the observed recent re-increase of EU-related activities in the Assemblée Nationale. Despite these trends towards convergence, important differences in domestic political systems and cultures persist. Among these, the existence of Eurosceptic parties and the autonomy of the parliament are crucial for the level of parliamentary involvement in EU affairs. In the EU-27, a common model of parliamentary scrutiny will be even less likely.

Notes 1 For details on interparliamentary cooperation, see the websites of both parliaments: www.assembleenationale.fr and www.bundestag.de. 2 See www.bundestag.de/interakt/info_mat/eu_verf.pdf, accessed on 16 November 2005. 3 See www.assemblee-nationale.fr/europe/declaration_24sep03.asp, accessed on 16 November 2005. 4 See T. Raunio (2005), ‘Holding governments accountable in European affairs: explaining crossnational variation’, Journal of Legislative Studies, 11, 3/4: 319–42; Raunio draws on different indicators developed in the literature on legislatures.

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5 See, for example, W. Ismayr (2000) Der Deutsche Bundestag (Opladen: Leske und Budrich); K. von Beyme (1999) Die Parlamentarische Demokratie, Entstehung und Funktionsweise (Opladen: Leske und Budrich). 6 These overhang mandates come up if there are more candidates of a party directly elected in a Land than this party is entitled to on the basis of the number of second votes it has obtained. 7 See Ismayr, op. cit., p. 145ff. 8 Ibid., p. 317 ff. 9 W. Steffani (1965) ‘Amerikanischer Kongreß und Deutscher Bundestag – ein Vergleich’, Aus Politik und Zeitgeschichte, B 43 , pp. 12–24. 10 See for example P. Norton (ed) (1996) National Parliaments and the European Union (London: Frank Cass). 11 There are several MPs who joined the respective groups without being members of the party. 12 The following information is mainly drawn from www.assemblee-nationale.fr/english/8ao.asp, accessed on 25 November 2005. 13 See, e.g. R. Grote (1995) Das Regierungssystem der V. französischen Republik: Verfassungstheorie und -praxis (Baden-Baden: Nomos). 14 See, e.g. R. Wieber (1999) Die Stellung des französischen Parlaments im europäischen Normsetzungsprozeß gemäß Art. 88-4 der französischen Verfassung der V. Republik (Frankfurt/Main et al.: Peter Lang,). 15 Ibid., p. 14 ff. The parliament can decide autonomously on its agenda once per month. 16 For overviews on the French political system and the role of the parliament, see, e.g. Grote, op. cit.; A. Kimmel (1999) ‘Der Verfassungstext und die lebenden Verfassungen’, in Bundeszentrale für politische Bildung (ed.), Länderbericht Frankreich (Opladen: Leske und Budrich), pp. 306–25; A. Grosser and F. Goguel (1980) Politik in Frankreich (Paderborn: Schöningh). 17 See Federal Law Gazette, 1957 II, p. 753 (Law of July, 27, 1957). 18 For a detailed analysis on the role of both parliaments in European matters before 1992, see, for the Assemblée Nationale, C. Lequesne (1993) Paris-Bruxelles: Comment se fait la politique Européenne de la France (Paris: Presses de la Fondation Nationale des Sciences Politiques); and for the Bundestag, P. Weber-Panariello (1995) Nationale Parlamente in der Europäischen Union. Eine Rechtsvergleichende Studie zur Beteiligung Nationaler Parlamente an derIinnerstaatlichen Willensbildung in Angelegenheiten der Europäischen Union im Vereinigten Königreich, Frankreich und der Bundesrepublik Deutschland (Baden-Baden: Nomos). 19 D. Rometsch (1996) ‘The Federal Republic of Germany’, in D. Rometsch and W. Wessels (eds), The European Union and the Member States: Towards Institutional Fusion? (Manchester: Manchester University Press); F. Hourquebie (1999) Les organes spécialisés dans les affaires communautaires des parlements nationaux: les cas français et allemands (Paris: L’Harmattan). 20 See Bundestag Printed Matter (hereinafter BPM) 12/6000, p. 20. 21 See Federal Law Gazette 1993 I, p. 311 ff. (Law of 12 March 1993 with amendments, adopted by the German Bundestag on 12 May 2005 and by the Bundesrat on 27 May 2005). 22 See Interministerial Agreement between the Federal Ministries (Ressortabsprache) of 10 November 1995, available on www.bundestag.de/ausschuesse/archiv15/a20/rechtsgrundlagen/recht_deu.pdf, accessed on 25 November 2005. 23 R. Scholz (2003) ‘Kommentierung des Art. 23 GG’, in T. Maunz and G. Dürig (eds), GrundgesetzKommentar (München: Beck). 24 Federal Constitutional Court Decisions 89, p. 155 ff. 25 Federal Constitutional Court Decisions 89, p. 186 ff. 26 Named after the former president of the National Assembly’s Delegation for the European Union, see Loi No. 94-476, 1994. It has amended the former ‘Josselin Act,’ No. 90-385, 1990. 27 The circulaires ministérielles contain detailed orders for civil servants on how to interpret a certain legal act. 28 See A. Moravcsik (1993) ‘Interests and ideals in the European Community: the case of the French referendum’, French Politics and Society (winter ); J. Steinhilber (2000) Die ‘Grande Nation’ und das ‘Haus Europa’: Frankreichs widersprüchlicher Entwicklungsweg (Hamburg: VSA); J. Laporte (1995) ‘The balance between executive power and legislative power in the relations of France with the European Union’, in F. Laursen and S. A. Pappas (eds) The Changing Role of Parliaments in the European Union (Maastricht: Institute for European Public Administration). 29 See Lequesne, op. cit.; Hourquebie, op. cit.

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30 State Council Decision No. 92-308,9 April 1992. 31 This restriction requires a continual examination of the legislative quality of each draft, which is provided by the Conseil d’État. See L. Sauron (2000) Die französische Verwaltung und die Europäische Union (Paris: La Documentation Française), p. 125ff. 32 See P. Weber-Panariello, op. cit. 33 See Ministerial Circular of 19 July 1994, as amended by Ministerial Circular of 13 December 1999. 34 Interview with the former Head of the EAC secretariat, on 25 April 2002. 35 See Fuchs, op. cit.; Ismayr, op. cit. 36 For details, see Scholz, op. cit., p. 120 and Rometsch, op. cit., p. 80. 37 See Fuchs, op. cit., p.18. 38 Ibid. 39 See Act No. 79-564 of 6 July 1979. 40 See Weber-Panariello, op. cit., p. 144; and A. Szukala and O. Rozenberg (2005) ‘The French parliament: parliamentary control without parliamentarians?’, in A. Maurer and W. Wessels, National Parliaments on their Ways to Europe: Losers, Latecomers and Forerunners (Baden-Baden: Nomos). 41 Act No. 90-385 of 10 May 1990, and Act No. 94-476 of 10 June 1994. 42 See Weber-Panariello , op. cit., p. 146. 43 See www.assemblee-nationale.fr/europe, accessed on 23 October 2005. 44 See www.assemblee-nationale.fr/qui/anto-aeu.asp, accessed on 28 November 2005. 45 See Délégation pour l’Union Européenne (2000) La Délégation de l’Assemblée Nationale pour l’Union Européenne: compétences et activités; www.assemblee-nationale.fr/europe/delegation-role.asp, accessed on 23 October 2005. 46 Ibid. 47 Information obtained by the Europabüro on 29 November 2005. In 2004, the number of transmitted Council documents was already 784. 48 Interview with the head of the EAC’s secretariat on 25 April 2002. 49 Interview with a member of the Bundestag’s EAC on 25 May 2002. 50 See A. Maurer and W. Wessels, ‘National parliaments after Amsterdam: from slow adaptation to national players?’ in Maurer and Wessels, op. cit., p. 447. 51 Information obtained by the Europabüro on 29 November 2005. 52 See A. Maurer (2002) Parlamentarische Demokratie in der Europäischen Union. Der Beitrag des Europäischen Parlaments und der Nationalen Parlamente (Baden-Baden: Nomos). 53 See www.assemblee-nationale.fr/english/european-delegation.asp, accessed on 23 October 2005. 54 See Szukala and Rozenberg, op. cit., p. 238. 55 See F. Rizzuto (1996) ‘The French parliament and the EU: loosening the constitutional straitjacket’, in P. Norton (ed.), National Parliaments and the European Union (London: Frank Cass). 56 See Szukala and Rozenberg, op. cit., p. 237. 57 See Délégation pour l’Union Européenne, op. cit. 58 See the reports of the EAC, www.bundestag.de/ausschuesse/archiv15/a20/bilanzen/ index.html, accessed on 23 October 2005. 59 See the EAC’s final report on the 14th electoral term, www.bundestag.de/ausschuesse/archiv15/ a20/oeffentlichkeitsarbeit/pdf_dateien/1998_engl.pdf, accessed on 23 November 2005. 60 Interview with an EAC member on 13 May 2002. 61 See Deutscher Bundestag (2005) Datenhandbuch zur Geschichte des Deutschen Bundestages 1994 bis 2003 (Baden-Baden: Nomos). 62 See Hourquebie, op. cit.; Rizzuto, op. cit.; Weber-Panariello, op. cit. 63 See www.assemblee-nationale.fr/english/european-delegation.asp, accessed on 23 October 2005. 64 See Délégation pour l’Union Européenne, op. cit. 65 Interview with the Permanent Representative of the Assemblée Nationale at the European Union on 11 October 2005. 66 See the annual reports on the stage of transposition of directives published as information reports by MP Christian Philip, www.assemblee-nationale.fr/europe, accessed on 30 November 2005. 67 In the 11th electoral term, only three of the hour-long Questions au gouvernement were exclusively

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Carina Sprungk dedicated to European issues. In addition, 13 EU-specific questions were raised during other ‘question hours’ in the same period. Unfortunately, there are no data available for other periods and for the percentage of written questions concerning EU affairs. See Ismayr, op. cit., p. 296. See S. Hölscheidt (2000) Die Behandlung von Europaangelegenheiten im Deutschen Bundestag von 1993 bis 1999, Working Paper No. 51/00 (German Bundestag: Research Service), p. 27. See Weber-Panariello, op. cit., p. 248. See Hölscheidt, op. cit., p. 28. Ibid., p. 19. According to the secretary and two members of the EAC in respective interviews. See Ismayr, op. cit., p. 297. See Weber-Panariello, op. cit., p. 254. See BPM 14/1819, 14/3474, 14/6643, 14/8323 and 15/1163. See Hölscheidt, op. cit., p. 129. Interview with a member of the EAC, 13 May 2002. See Délégation pour l’Union Européenne, op. cit. See, e.g. Weber-Panariello, op. cit., p. 154. See Rizzuto, op. cit., p. 54. See Szukala and Rozenberg, op. cit., p. 238. See, e.g. Assemblée Nationale (2003) Rapport d’information déposé par la Délégation de l’Assemblée Nationale pour l’Union Européenne sur la Convention sur l’avenir de l’Europe, No. 994, 1 July 2003, Reporter: MP Pierre Lequiller. See Weber-Panariello, op. cit., p. 176 See Rizzuto, op. cit., p. 54. See Szukala and Rozenberg, op. cit., p. 235. See www.assemblee-nationale.fr/english/european-delegation.asp#P582_27844, accessed on 24 October 2005. See www.assemblee-nationale.fr/12/europe/resolutions.asp, accessed on 4 May 2006. See Weber-Panariello, op. cit., p. 181. According to Art. 151-4 of the Assemblée Nationale’s Rules of Procedure (RAN). Szukala and Rozenberg, op. cit., p. 240. Ibid., p. 94. According to an interview with the Permanent Representative of the French Assemblée Nationale to the European Union on 11 October 2005, the small number of French parliamentary resolutions is not necessarily negative but can also be interpreted in positive terms, since it gives individual resolutions more political weight than in cases of frequent use. See www.bundestag.de/ausschuesse/archiv14/a22/a22_oeff.html and www.bundestag.de/ ausschuesse/archiv15/a20/eu_debatten_15_wp/index.html, accessed on 23 May 2006. See Deutscher Bundestag, op. cit., 2005. As an effect of Europeanization processes, European issues can certainly be the implicit subjects in public debates on domestic affairs. However, explicit European topics rarely represent a sufficient condition for MPs to initiate public debates. See Hölscheidt, op. cit., p. 19. See Weber-Panariello, op. cit., p. 254. See www.bundestag.de/ausschuesse/archiv15/a20/bilanzen/bilanz_15wp.html, and www. bundestag.de/ausschuesse/archiv15/a20/bilanzen/bilanz_14wp.html, accessed on 28 November 2005. See www.bundestag.de/gremien/a22/index.html, accessed on 12 October 2002. MPs of both the government party (SPD) and the opposition (CDU/CSU) claimed in respective interviews in May and June 2002 that communication and control are equally important and that it depends on the working program of the EAC which function is more intensively exerted. For example, MPs can ask the government for information about European issues during the questioning hours. Public debates can also take place after reports of the government on European integration. Finally, legislation proposals for transposing European into national law or the parliamentary resolutions might be object of a discussion in the plenary.

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102 See Weber-Panariello, op. cit., p. 192. 103 See Grote, op. cit. 104 See Sauron, op. cit., p. 121; and www.assemblee-nationale.fr/english/european-delegation.asp, accessed on 25 November 2005. 105 See Rizzuto, op. cit., p. 57; Szukala and Rozenberg, op. cit. 106 See Délégation pour l’Union Européenne, op. cit. 107 According to an internal paper of the Assemblée Nationale of 2002. 108 See www.assemble-nationale.fr/12/europe/constitution_europe.asp, accessed on 24 November 2005. 109 For details, see Deutscher Bundestag, Referat für Öffentlichkeitsarbeit (2004) Eine Verfassung für Europa: Der Europäische Konvent und der Deutsche Bundestag (Berlin: Deutscher Bundestag). 110 For the previous work of the Convention on these protocols, see T. Brown, ‘National parliaments in the Convention on the Future of Europe’, Federal Trust Online Paper 31/03. 111 For a good overview on the necessary constitutional amendments, see Szukala and Rozenberg, op. cit. 112 See Assemblée Nationale, plenary session of 5 April 2005 and the DUE meetings and various documents on the post-referendum situation, see e.g. www.assemblee-nationale.fr/12/europe/crendus/c0138.asp#P17_583, accessed on 30 November 2005. 113 See, e.g. K. Auel and A. Benz (2005), ‘The politics of adaptation: the Europeanization of national parliamentary systems’, Journal of Legislative Studies, 11, 3/4: 372–93. 114 See T. Börzel and C. Sprungk (in press) ‘Undermining democratic governance in the member States? The Europeanization of national decision-making’, in R. Holzhacker and E. Albaek (eds), Democratic Governance and European Integration: Linking Societal and State Processes of Democracy (Aldershot: Edward Elgar). 115 Interviews with Representatives of the Section of National Parliaments in the European Parliament and the Section on the Relationship with National Parliaments in the European Commission in October 2005. 116 See B. Benoit (1997) Social-nationalism: An Anatomy of French Euroscepticism (London: Ashgate), p. 56. 117 See also Szukala and Rozenberg, op. cit., p. 240. This further supports the hypothesis that the parliament uses its new rights because they improve its role in the domestic system. However, the enhancement does not result in a greater autonomy, but in a more intensive partnership with the government. 118 See www.assemblee-nationale.fr/europe/seance.asp for the 11th electoral term and www.assembleenationale.fr/12/europe/seances.asp for the 12th electoral term respectively, accessed on 25 November 2005. 119 See Hourquebie. op. cit., p. 87ff. 120 See K. Auel and A. Benz, op. cit. 121 See, e.g. D. Berg-Schlosser and R. Rytlewski (1993) Political Culture in Germany (New York: St Martin’s Press); A. Lijphart (1999), Patterns of Democracy, Government Forms and Performance in Thirty-six Countries (New Haven: Yale University Press). 122 See L. N. Lindenberg and S. A. Scheingold (1970) Europe’s Would-Be Polity: Patterns of Change in the European Community (New York: Prentice-Hall). 123 See also Hölscheidt, op. cit., p. 117ff. 124 See European Commission, Eurobarometer/Public Opinion in the European Union, Report No. 63, p. 94. 125 Ibid., p. 99. 126 See European Commission, Eurobarometer/Public Opinion in the European Union, Report No. 61, p. B 39. 127 See C. Sprungk and S. von Oppeln (2005) ‘Bevölkerungsmeinung und Elitendiskurs. Die deutsche und die französische Debatte über den Verfassungsvertrag’, WeltTrends, 48: 121–31. Interestingly, as polls indicate, the support for the CT decreased after the French veto. 128 See Rometsch, op. cit., p. 78. 129 T. Risse (2001) ‘A European identity? Europeanization and the evolution of nation-state identities’,

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131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147

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Carina Sprungk in M. Green Cowles, J. Caporaso and T. Risse (eds), Transforming Europe: Europeanization and Domestic Change (Ithaca, NY: Cornell University Press). K. R. Korte and A. Maurer (2002) ‘Innenpolitische Grundlagen der Europapolitik: Konturen der Kontinuität und des Wandels’, in H. Schneider, M. Jopp and U. Schmalz (eds), Eine neue deutsche Europapolitik? Rahmenbedingungen – Problemfelder – Optionen (Bonn: Europa-Uniov Verlag), pp. 195–230. See Weber-Panariello, op. cit. See Raunio, op. cit, p. 330ff. According to interviews with members of the EUA in May 2002. See Hölscheidt, op.cit. See J. Schild and H. Uterwedde (eds) (2005) Frankreichs V. Republik. Ein Regierungssystem im Wandel (Wiesbaden: VS-Verlag). See H. Drake and S. Milner (1999), ‘Change and resistance to change: the political management of Europeanization in France’, Modern and Contemporary France, 7, 2, 165–78, p. 167. Benoît, op. cit., p. 10. Drake and Milner, op. cit.; Steinhilber, op. cit. See European Commission, Eurobarometer/Public Opinion in the European Union, Report No. 63 , op. cit., p. 94. Ibid., p. 99. See Sprungk and von Oppeln, op. cit. For example, PS-member Jean-Pierre Chevènement founded the Mouvement des Citoyens (MDC) and former UPF-member Philipp de Villiers founded the Mouvement pour la France (MPF). See Benoît, op. cit., p. 12. See Assemblée Nationale, public debate on the CT of 5 April 2005. See A. Maurer (2002) ‘Nationale Parlamente in der Europäischen Union: Herausforderungen für den Konvent’, Integration, 25, 1: 20–34. See Benoît, op. cit., p. 54. There was a far greater number of proponents of further European integration in the Assemblée Nationale, but the Eurosceptics were ‘more vocal and more influential than their pro-European counterparts’; see Benoît, op. cit., p. 55. See, e.g. Szukala and Rozenberg, op. cit., p. 236.

9

Scrutiny of EU legislation in the UK parliament The first thirty years … and beyond? Adam Cygan

Introduction Following detailed inquiries into the precise structure and remit of their respective committees, both houses of the UK parliament developed individual and different scrutiny procedures.1 It has remained a feature of the parliamentary scrutiny arrangements that the House of Commons and the House of Lords have sat independently of each other, and rarely follow the same work agenda.2 In 1974 the main distinction was rooted in the terms of reference which permitted the House of Lords Select Committee on the European Communities to consider the merits of legislative proposals and other non-legislative documents, thereby affording opportunity for inquiries to move more ‘upstream’ in the decisionmaking process. The terms of reference in the Commons have, by contrast, been narrower and require the European Scrutiny Committee to consider whether a legislative proposal has ‘raised questions of legal or political importance’.3 Consequently in the intervening thirty years, the Commons Committee4 has often been referred to as being ‘reactive’, whereas the Lords Committee is considered ‘proactive’ in its review of European affairs. The reason for this difference in the terms of reference arises because the Commons, as the pre-eminent legislative chamber, considered its function to be primarily concerned with addressing the immediate political and legal questions which arise out of European legislative proposals. Accordingly the Commons has perceived its role of scrutiny as having the same objective of executive accountability that is pursued when reviewing domestic legislation. In 1974 the House of Commons felt, as it does today, that it has a paramount duty to ensure that the executive is accountable to the chamber for decisions which are taken in the Council. By contrast, the House of Lords is an unelected revising chamber whose members undertake no constituency duties. Consequently, in comparison to MPs, peers have more time available to dedicate themselves to indepth scrutiny and review of EU affairs. Such scrutiny is particularly suited to a chamber composed of a cross-section of peers who bring to the task of European Union (EU) scrutiny their vast experience and knowledge. The in-depth inquiries by the Lords, when considered alongside the mechanical scrutiny work of the Commons, are key factors in explaining why the UK parliament is consistently

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described as a ‘strong’ parliament when reviewing EU legislation. The complementary package of scrutiny in both Houses seeks to maximize executive accountability through different procedures. This chapter evaluates how, in thirty years of UK membership of the EU, parliament has sought to retain both influence and control over the executive in the EU decision-making process. Brief consideration will also be given to the potential impact of proposals arising from the stalled Constitutional Process, and what effect, if any, these will have upon parliament’s ability to exercise influence over the executive. To do this, this chapter considers the procedures in the Commons and the Lords which jointly create a parliamentary package of scrutiny.5 The form of this scrutiny is that it continues the Ministers’ responsiblility to Parliament, that is the central feature of the UK’s parliamentary democracy and it was this objective that both chambers pursued in Working Group IV of the Constitutional Convention.

The political, legal and constitutional context of scrutiny With the Commission retaining primary responsibility for the initiation of European legislative proposals, the position of the UK parliament is undoubtedly weaker than when it scrutinizes wholly domestic legislation. For thirty years the scrutiny committees of both houses, or for that matter any other national scrutiny committee, have not been brought formally within the Community method of decision-making. During this time, the committees have not developed any formal relationship with the Commission, primarily because the objective continues to be that of influencing the executive and not the Commission.6 Likewise the committees have no formal working relationship with the European Parliament or other institutions.7 Since 1974 the purpose of scrutiny has been to influence the minister before s/he casts his/her vote in Council. Consequently, the Commons, in particular, has not always appreciated that with the introduction of the co-decision procedure, the lack of a formal working relationship with the European Parliament has, on occasion, hampered its scrutiny activities. The Commons’ European Scrutiny Committee8 and the European Parliament9 have acknowledged this weakness, yet there remain no formal proposals to institutionalize the working relationship between the European Parliament and national parliaments beyond the existing arrangements for COSAC.10 In 2002 the European Parliament passed a resolution which stated that national parliaments and the European Parliament have complementary and not competing roles, and that, jointly, they may contribute to what was referred to as the ‘parliamentarization’ of the EU. This theme was pursued within the Constitutional Process. A prevailing view within the Commons committee, particularly since the Maastricht amendments to the legislative process, has been that the European Parliament is a competing institution with its own definitive role in the legislative process. In this regard the European Scrutiny Committee has viewed the European Parliament as part of the accountability problem within the EU, and not

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necessarily as part of the solution. The European Parliament competes with the Council and is seeking to become the pre-eminent political institution in the legislative process. From a Commons perspective, the European Parliament is part of the problem because it can amend the Council’s common position, which the scrutiny committee has already reviewed. The Commons can only exercise influence over the UK minister in Council, and in the light of the practical arrangements of codecision does not automatically review European Parliament amendments. It is not unsurprising that the Commons commits its time and energy to scrutinizing the activities of the Council, as this remains the only level of direct influence which it retains. The relationship between the Council and the European Parliament within co-decision exists in parallel to that which exists between the committee and minister and is based on different criteria and objectives. Consequently the relationship between the Council and the European Parliament is beyond the scope of domestic parliamentary influence.11 Parliament has tried to compensate for the limited influence which it can exert over EU institutions through seeking to maximize the effectiveness of its own internal procedures. Most notably this has been through the introduction of the Scrutiny Reserve Resolution which applies to both chambers.12 The Reserve, though significant in domestic parliamentary terms, through control over ministerial action, cannot place a complete brake on the overall legislative process. The demise of the veto and the norm of qualified majority voting have altered significantly the EU’s decision-making processes, and raise problems for both committees which were not wholly anticipated in 1974. At the time, the Foster and Maybray-King committees13 did appreciate that procedures would need to evolve in parallel with the development of European integration, if the committees were to maintain influence over the executive. Since 1974 the substance of the problems facing both committees has not changed, rather they have become more acute. The committees are continually aware of their scrutiny function, but practical arrangements have not always secured this objective.14 Exerting influence over the minister and how to engage with an ever increasing volume of paperwork in good time to enable the requisite scrutiny to be completed remain significant challenges for the committees. Since the Maastricht Treaty the work of the committees has been dominated by one additional question, namely what is the most appropriate mechanism through which to monitor the application of the subsidiarity principle. The growth in EU competences that has occurred through successive Treaty amendments has challenged the position of domestic legislatures across the EU and raised uncertainty as to how and by whom subsidiarity should be policed. The Constitutional Process recognized this problem and proposed several amendments in relation to the allocation of time for national scrutiny and the practical arrangements for the review of subsidiarity.

The scrutiny process in the House of Commons The House of Commons is the elected chamber of the UK parliament. The key feature of its composition is that MPs are elected under the ‘first past the post’

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electoral system which almost always produces a majority government within parliament. For example, at the 2005 general election, the victorious Labour Party secured only 35.7 per cent of the popular vote, which transformed itself into 55 per cent of the seats in the new parliament. The Labour majority over all other parties was 66 seats. This electoral system reinforces the party system which dominates the House of Commons and has created what is referred to as an adversarial system of political decision-making. Consequently, the composition of all parliamentary committees reflects the proportion of seats held by a party, thereby guaranteeing the governing party a majority within all select committees. One issue dominating both committees since their establishment has been the need to ensure the timely provision of documentation by both government and the European Commission. This is the main motivation behind the Scrutiny Reserve Resolution. Since 1974, the system of scrutiny of EU legislative proposals has remained firmly based on the examination of documents rather than focusing on the upcoming Council meeting. Prompt information is the key to rigorous scrutiny. Despite over thirty years of Community/Union membership, however, UK parliamentary activity has not become ‘Europeanized’. For most MPs and peers the domestic political agenda still dominates the daily work of parliament. One reason for this is that the review of European legislative proposals has been consistently located within a specialized select committee, rather than mainstreamed among departmental select committees. That is not to suggest that Europe is not discussed outside the EU committees; rather it is that European issues are discussed by departmental select committees only when relevant to a particular inquiry. However, in terms of considering EU legislative proposals, this task is exclusively left to the specialist committees of both houses. The terms of reference of the European Scrutiny Committee have evolved15 and its remit now covers review of not only legislative proposals but also other documents16 such as Green and White Papers.17 By contrast with the chamber the commons committee regularly cites its consensual approach to inquiries as one of its strengths. Both committees scrutinize ‘European Union documents’.18 The term is given a broad meaning and covers proposals for Community legislation and a large variety of other documents issuing under the Treaties. They include the Commission’s annual work programmes, Green and White papers, reports and communications, reports of the Court of Auditors and, importantly, Second and Third Pillar documents (draft common strategies, joint actions or common positions in the former case and draft common positions, framework decisions, decisions or conventions in the latter case).19 When in the course of legislation a new text is produced, such as an amended Commission proposal or a Council common position, a new document is thereby generated and the scrutiny process begins again.20 European Union documents are deposited in parliament by the Foreign and Commonwealth Office within two working days of their receipt in London. Within ten days of deposit the lead department is expected to provide an Explanatory Memorandum (EM) signed by a minister. The EM is the minister’s evidence to

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parliament and is a public document. In the case of a legislative proposal it should include:

• • • • • • •

a description of the subject matter; details of the legal base and legislative procedure proposed for the measure and any reservations or comments the minister may have about them; assessment as to whether the proposed legislation accords with the principles of subsidiarity and proportionality; the impact on United Kingdom law; the Government’s policy towards the document; and the financial implications; and the likely timetable for the Council’s consideration of the proposal.

The requirement to provide an EM is an important and valuable feature of the system. It enables the scrutiny committees in both chambers to assess the documents quickly and it establishes at the outset the accountability of ministers to parliament and its committees for their conduct with regard to them. The present House of Commons European Scrutiny Committee is a manifestation arising out of the Modernization Committee Report of 1999.21 This proposed amendments to the standing orders of the committee established in 1974 and subsequently has developed its role into one which, though more proactive than before, remains narrower compared with that of the Lords committee. The standing orders require the committee to consider each document and determine its ‘legal or political importance’. Only those documents which raise such issues will be subjected to further scrutiny. Otherwise a document is deemed ‘cleared’ and the scrutiny process is complete. Despite the changes to the terms of reference, the committee is still not required to express a formal view on the merits of the legislative proposal, though it is evident from committee reports that, when appropriate, it will express concern or approval of a document. Once the committee has reported its conclusions on the document, and unless it recommends a document for debate, the proposal will have cleared the scrutiny hurdle, which in practical terms lifts the Scrutiny Reserve and allows the minister to vote in council. If the select committee concludes a document is legally and/or politically important it will undergo further debate which takes place either on the floor of the chamber itself, or more usually within one of the European Standing Committees.22 The European Standing Committees23 did not come into existence until 1991, up to which point deliberations took place exclusively within the chamber. These debates were characterized as being held late at night and with a turnout of the ‘usual participants’. Generally, this would include MPs who were either pro- or anti-European and who would be inclined to rehearse unrelated constitutional arguments relating to supremacy rather than discuss the document at hand. To improve the quality of the argument the Procedure Committee recommended in 198924 that five European Standing Committees be established, in order to remove debate from the floor of the House of

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Commons and enable a degree of specialist knowledge to develop among MPs who are interested in European affairs. From this perspective, the establishment of the standing committees has added to the quality of the scrutiny which takes place.25 The debate is now concentrated on the document before the standing committee because the rules of procedure only permit a maximum of two and a half hours for proceedings to be concluded.26 The move towards debates in standing committees has without question improved the quality of debate and consequently the scrutiny system overall. Though the Commons is first and foremost a debating chamber, it would not be inaccurate to suggest that EU affairs are not always subjected to informative and rational debate. The adversarial nature of British politics is no more apparent than in the realm of EU affairs. For the political parties, all of which share the characteristic that they are divided on the issue of Europe, plenary debates do no more than highlight internal splits. This is because historically in the UK Europe is not an issue which divides parties on traditional splits of ‘left’ or ‘right’. When considering EU legislative proposals the standing committee system is preferable to plenary debates, both in terms of ensuring quality and, for party managers in the Commons, as a way of marginalizing discussions on EU affairs away from the chamber. The Commons scrutiny system in its present form undoubtedly possesses a number of strengths. First, it has extremely wide coverage – every EU document is reviewed from the perspective of its legal and political importance to the UK. Second, it has placed ministerial accountability at the centre of Commons’ European activities. Each document deposited requires written evidence in the form of an EM from the appropriate minister who can be questioned further if the committee recommends that a document be subjected to a formal debate. Third, the committee can, if necessary, complete the scrutiny and report in a matter of days to ensure that the minister is made aware of the Commons’ position. Finally, the Scrutiny Reserve, the cornerstone of the scrutiny process, ensures that ministers are conscious of the importance of the work of the committee, especially when they are attending the Council. Consequently if scrutiny is incomplete the minister should, unless there are exceptional circumstances, request a delay for the final Council vote. The fundamental issues facing the House of Commons when executing its scrutiny function remain the same today as they were thirty years ago. In two reports which formed part of the Commons’ submission to the Convention27 the European Scrutiny Committee identified, as it has done on several previous occasions,28 weaknesses that still exist within the existing arrangements. The committee emphasized in particular that for executive accountability to be meaningful the relevant documentation must be available promptly and sufficiently in advance of the Council meeting to enable scrutiny to be concluded.29 The Scrutiny Committee maintained that the overriding objective of the scrutiny process was to influence the minister prior to the Council adopting its definitive common position. In the absence of effective provisions at the EU

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level to guarantee this, the committee had to ensure that the obligations within the Scrutiny Reserve were consistently applied.

The scrutiny system in the House of Lords The House of Lords is the unelected upper house of the UK parliament, and has a total membership of 730 peers, though only a small proportion of these are categorized as ‘working peers’ who regularly attend parliament. Until 2000, 56 per cent of the peers were hereditary, the remainder being life peers appointed by the government of the day. However, with the abolition of appointed hereditary peers under the House of Lords Act 1999, the chamber now consists wholly of life peers, except for 92 hereditary peers who were permitted to retain their seats. The presence of political parties is less pronounced in the Lords where independent ‘crossbenchers’ make up approximately 25 per cent of the total number. In addition, members of the judiciary (Law Lords) and the bishops of the Church of England (Lords Spiritual) also sit in the chamber. Though these peers tend to limit their political functions, their presence together with that of the crossbenchers does make the Lords’ chamber less adversarial than that of the Commons. The Lords’ is a revising chamber, which though it can propose amendments to a Bill, can only block a Bill for a maximum of one year. Politically, the Commons will rarely ignore the views of the Lords on sensitive matters but where necessary will use the Parliament Acts of 1911 and 1949 to force through legislation which peers have voted against. Most recently the Parliament Acts were used to push through the Hunting Bill 2004, which the House of Lords had rejected despite an overwhelming majority in favour in the Commons. The Parliament Acts guarantee the pre-eminence of the elected House of Commons over the unelected House of Lords. There is no departmental select committee system in the Lords; rather there are specialist committees which focus on specific areas of governmental activity. One such committee is the European Union Committee which was first established in 1974. The current terms of reference of the European Union Committee came in to operation on 6 December 1999, and replaced the previous remit that had been in operation for 25 years. Though more concisely worded than its predecessor, the amendment made no significant difference to the function of the Committee. The terms of reference are: ‘To consider European Union documents and other matters relating to the European Union’. The remit of the European Union Committee is thus very broad even though it adopts the same definition of European Union documents as the Commons’ committee. The advantage of such wide terms of reference is that they provide flexibility for the Committee and considerable scope to carry out diverse inquiries on all aspects of European Union law and policy including proposals under Pillars two and three. In contrast, the Commons did not acquire until 1999 an amendment to its terms of reference that allowed for scrutiny of documents under Pillars two and three. The broad terms of reference were always considered an asset for the European Union Committee. The terms of reference are fulfilled through the appointment of six sub-committees

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which conduct the detailed scrutiny of the documents and conduct specific inquiries. Out of this arrangement, the committee produces on average 25 reports each year, many of which are extremely detailed and based on obtaining evidence from a wide variety of interested parties as well as government officials and ministers. At first sight, the terms of reference of the Lords’ committee may appear similar to those of its House of Commons counterpart. However, on closer analysis the similarity is limited. For example, the names of the two committees illustrate the difference of focus. The Lords’ committee is today called the Select Committee on the European Union (previously being the European Communities Committee). Compared with the pre-1999 House of Commons Select Committee on European Legislation or its current incarnation as the European Scrutiny Committee, it is apparent that the House of Lords select committee has always had a wider brief. This gives the impression that it is not merely a select committee whose primary task is to scrutinize European legislative proposals. It has since 1974 regularly examined wider questions of policy, in addition to fulfilling the important task of scrutinizing legislative proposals. The current European Scrutiny Committee in the House of Commons has only recently obtained some of the powers which the Lords’ select committee has had since 1974. The sub-committee arrangements in the House of Lords have evolved over the last 27 years and are best characterized as being flexible. The major changes have centred on the actual subject brief of each of the sub-committees. Originally, there were five sub-committees, covering the subject areas recommended by the Maybray-King committee in 1973. This was increased to seven in the 1975–6 session but reduced to six in the 1986–7 session, primarily to allow for the staffing of ad-hoc sub-committees. Following recommendations of the Jellicoe Committee in 1991,30 the numbers were reduced to five in the 1992–3 session. However, with the development of political cooperation since Maastricht and the broadening of EU competences it was felt necessary to re-organize the sub-committees to reflect more closely the work of the European Union. The major developments were the introduction of Sub-Committees F and G after 1997 to reflect more closely both the thematic priorities and structure of EU policy. The current sub-committees are arranged as follows: Sub-Committee A Sub-Committee B Sub-Committee C Sub-Committee D Sub-Committee E Sub-Committee F Sub-Committee G

Economic and Financial Affairs, Trade and External Relations Internal Market Foreign, Defence, and Development Policy Agriculture and Environment Law and Institutions Home Affairs Social Policy and Consumer Affairs

Sub-Committee E is unique among the sub-committees, as it has always had its own very specific terms of reference and is composed predominantly of lawyers, including members of the judiciary who sit in the Lords. The terms of reference are

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tailored to meet the requirements of the sub-committee to execute the crucial task of advising the Government about the correct legal base for a Commission proposal. Specifically, the terms of reference require the sub-committee to consider the vires of any proposal and whether the proposal will have implications for the repeal of existing legislation. In performing this task the sub-committee makes frequent and effective use of Correspondence with ministers. This strong reliance on correspondence as the means for obtaining government views on a proposal, rather than organizing formal evidence sessions, reflects the fact that the subcommittee usually works to a very tight deadline. In practice only a very few proposals of the approximate 1200 deposited in Parliament each year are subject to detailed examination. On average each subcommittee will conduct three inquiries each year/parliamentary session. What of the remaining documents? The sub-committee may, having looked at a particular proposal, decide to write to the minister seeking further information, or recording its views on the matter. Sometimes that letter may be written with the benefit of written evidence volunteered or solicited from interested parties. On receipt of this letter the committee may conclude that scrutiny is cleared and the reserve is lifted. All such and other significant correspondence from the select committee and its sub-committees to the government is reproduced in biannual reports entitled Correspondence with Ministers.31 The sub-committee reports are regularly read by European Commission officials and in other parliamentary institutions within the EU. Their strength is the level of expertise contained within them, their independence from government (a particular benefit at those times when the government may be considered sceptical), and, finally, the influence that the reports have both domestically and at EU level. However, formally measuring the impact of the Committee’s work is difficult. The problem for many European issues is that they are often considered to be technical, for example, the CAP or the budget, or concerning matters which may not directly be relevant to the United Kingdom, for example the 1994/95 session report into relations between the EU and the Maghreb countries.32 Reports will be of interest to those working in the particular field but not necessarily to peers or the wider public more generally. Beyond the UK, and particularly at Commission level, the House of Lords committee is just one of many providing evidence and opinions on legislative and policy proposals. There are though clear examples where select committee reports have undoubtedly influenced the final proposal. One is the Report into Fraud and Mismanagement in the Community’s Finances, widely acknowledged as a major contribution by the Commission and by other member states. The report articulated in a non-partisan way concerns which HMG had held for many years but had been unsuccessful in putting across since they were perceived as more complaints from a government considered at the time to be ‘Eurosceptic’. Other examples include the final legislation on Product Safety and Unfair Contract Terms, which included several recommendations made in the report written by Sub-Committee E.33 Likewise, the recommendations made by the select committee in the late 1980s that wider powers be given to the Court of Auditors and that member states be given clearer duties to fight fraud all found their way into the Maastricht Treaty.34

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The Parliamentary Scrutiny Reserve Resolution The linchpin of the UK parliamentary system is the Scrutiny Reserve Resolution. Both houses have such an instrument.35 They provide that no minister of the Crown shall give agreement to any proposal for European Community legislation, or for one of the specific instruments of Title V or Title VI of the Treaty on European Union (TEU), which is still subject to scrutiny, i.e. one on which the Scrutiny Committee has not completed its scrutiny, or which is awaiting consideration by the House in that it has been recommended for debate and the debate has not yet taken place. The Resolution contains a mechanism whereby a minister may give agreement to any proposal which is ‘confidential, routine or trivial, or is substantially the same as a proposal on which scrutiny has been completed’. The minister may also give agreement to a proposal still subject to scrutiny ‘if he/she decides that for special reasons agreement should be given’. But in that event he/she is required to explain his/her reasons to the committee or the house at the first opportunity. It has been said that there are signs that ministers are increasingly reluctant to override the Scrutiny Reserve.36 Certainly there is much more transparency about the process of overriding scrutiny. The Government/Cabinet Office now provides the scrutiny committees with statistical information about how many times scrutiny has been overridden. This information is published in the committees’ annual reports. In 2004, the Scrutiny Reserve Resolution was overridden on 38 occasions, 16 in the first six months and 22 in the second. Overriding scrutiny is a matter to which both committees pay careful attention and occasionally a minister may be called to give evidence to explain the need to override scrutiny.37 The primary reason for such attention is that the Reserve makes ministers accountable for their decisions and in circumstances where they have overridden parliamentary scrutiny then parliament has a right to an explanation of why this has occurred. There is no one clear reason why the government overrides the Reserve, but there is no overt evidence to suggest that the government is seeking to marginalize parliament. It is important to remember that the EU legislative process is one which is outside the scope of UK government control. Time is arguably the crucial issue given the fast moving nature of co-decision once a final proposal is jointly agreed by the European Parliament and the Council. That is not to suggest that overriding the Scrutiny Reserve does not occur. A recent report by an independent think tank, OpenEurope, states that the government has overruled the Scrutiny Reserve 346 times since 2001, and that the increased use of ‘copy-out’ by the government as an implementing technique for EU legislation further limits the impact of scrutiny.38 The chair of the Commons Scrutiny Committee has rejected the view of the OpenEurope report that the current government ignores the Reserve more frequently. Previously in evidence to the Joint Committee on European Affairs of the Irish Parliament (the Oireachteas) the chair stated that we have made it perfectly clear to ministers that if they ignore the Scrutiny Reserve they will have to come back and explain to us and to the people, in front of television cameras, why they did this. It is good discipline, but there are times

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when ministers, in view of all those considerations, must make a decision and stand by it. There are occasions when they will override a Scrutiny Reserve but when they do they must come back with some good answers.39 Implicit in this statement is a recognition that the committee is focused on ensuring that there is effective ex post accountability of the government but also that ministers in Council need flexibility to make decisions when it is in the UK interest. Arguably, in the absence of any legal enforcement of the Reserve there are few other options available to the committee. It is important to remember that scrutiny is a political not a legal process and that any sanction comes within the scope of parliamentary practice and procedure. If government abuses parliamentary procedure it is then a matter for parliament to resolve. The difficulty in the UK remains that government is in prima facie control of parliament. For the scrutiny committees of both houses their response to this ebbing of influence has been to do more of what they are already doing – namely reviewing documents and holding inquiries and where possible bolstering their own working procedures.

Scrutiny as substitute sovereignty After 34 years of EU membership, the primary objectives for the scrutiny committees in both houses remain the ex ante review of legislative proposals and to influence the minister before attending the Council. With the introduction of the Scrutiny Reserve the committees have acquired a closer monitoring function of Council decision-making with ministers being subject to ex post accountability if they breach the Scrutiny Reserve. Through such scrutiny, the Commons and Lords are seeking to transfer to European legislative proposals those traditional constitutional principles, collectively referred to as executive accountability, which are readily apparent when reviewing domestic legislative measures. At the core of this is the requirement of government ministers to come to the dispatch box and explain their actions. In this context the two houses, and perhaps the Commons more specifically, have attempted to maintain the same rigorous review of executive action in relation to the European legislative proposals as is applied to domestic ones. The form of scrutiny undertaken by the both Houses can be categorized as substitute sovereignty – the more scrutiny that occurs, the more that MPs and peers may consider that this operates as a counterbalance for legislative sovereignty and competence that has been transferred to the EU. The goal of executive scrutiny should not be understated and the work of the committees must be considered a crucial task, as it remains to this day the only direct control over the UK government throughout the entire EU decision-making procedure. In 1974 the aim of the Foster and Maybray-King committees was to put forward a framework for scrutiny that would secure both houses the maximum influence over the executive. One issue raised within the Foster Committee was that the Commons would only be able to maintain influence if legislative proposals arrived in the form of directives rather than regulations.40 This misconception demonstrates not only how the perception of scrutiny within the Commons has been dominated from the outset

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by a desire to uphold parliamentary sovereignty but also how political actors have over the years misunderstood the impact of European law within the UK legal system.41 The Commons committee has over time come to appreciate that the function it performs on behalf of the Chamber is different from that which is performed when the Commons reviews domestic legislative proposals. Most significantly the European Scrutiny Committee cannot propose amendments to a legislative proposal, making the directive/regulation distinction redundant with regard to content of a proposal. In an omni-competent and enlarged EU the task of the European Scrutiny Committee should not be to claw back sovereignty through excessive domestic scrutiny which ultimately has minimal impact within the Council. Rather, given that the objective of scrutiny is to influence the minister ex ante, scrutiny procedures should be seeking to employ effective and targeted mechanisms to achieve this. The Scrutiny Reserve is crucial to achieving this. The need for a functioning Scrutiny Reserve is the primary conclusion which came from Working Group IV on the Constitutional Convention, as a fundamental and common principle to which all national parliaments can adhere, irrespective of their individual domestic scrutiny arrangements. Both houses in the UK have made it clear that some form of new EU institution representing national parliaments at the EU level and performing this scrutiny function is not required.42 It would also be inappropriate for any EU institution to seek to influence or determine how any national parliament undertakes its scrutiny activities. However, the difficulty facing all national parliaments lies in the fact that it is the progress of the decision-making process itself that ultimately governs when, and to what extent, such scrutiny will occur. The present lack of coordination between EU institutions and domestic parliaments over issues such as the legislative timetable or providing sufficient time for scrutiny goes to the heart of the unease that exists in the relationship between them. This is in part one explanation why the Commons has in the past compensated for the transfer of competence with over-rigorous scrutiny. For the House of Commons, problems of transparency and efficient provision of documentation with their roots firmly in the EU must first be addressed before any progress can be made to resolve the wider problem of direct disconnection between the EU institutions and citizens.43 Scrutiny remains effective if it is pre-legislative and based upon the timely provision of all available documentation. The committees seek to achieve this through enforcing the Scrutiny Reserve which reinforces the argument that parliamentary scrutiny procedures amount to substitute sovereignty. The Reserve, which seeks to maximize executive accountability, is primarily intended for domestic parliamentary consumption to reassure sceptical MPs that the views of the UK parliament do matter and are relevant to EU decision-making. Consequently the introspective nature of the Reserve leads it to operate independently of the Council timetable. Working Group IV of the convention concluded that this is unsatisfactory and that scrutiny reserves require greater prominence in the Treaty if national parliaments are themselves to believe they have not become peripheral to the process of European integration. The final version of the Constitutional Treaty, rejected by the

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French and Dutch citizens in 2005, included a Protocol which recognized the importance of scrutiny reserves and the provision of information as two prerequisites for scrutiny.44

Conclusion After 34 years of EU membership the UK parliament does not have procedures for the surveillance of EU affairs that ensure executive accountability is never compromised. While it remains unlikely to develop a scrutiny procedure which ensures parliamentary control of the type exercised in wholly domestic circumstances, there remains scope for improvement. One solution promoted in the last parliament was the creation of a Joint Grand Committee for Europe.45 It is envisaged that the Committee would meet about four times a year, two of which would be devoted to considering the Foreign Secretary’s regular six-monthly White Papers on Europe. MEPs would be allowed to attend. Commissioners and Commission officials might also participate in meetings of the new committee but would not be subject to scrutiny by the joint committee. Their role would be to share information, to inform the debate and to foster dialogue between the Commission and parliament. What seems clear is that the new joint committee would not take over or displace the regular detailed scrutiny work undertaken by the two scrutiny committees. Any future development in relation to the work and practical arrangements of both committees remains subject to the future prospects of the Constitutional Process. In practice this will be a matter of which parts of the rejected Treaty can be salvaged. The provisions of the Constitutional Treaty that relate to national parliaments would improve their ability to conduct scrutiny and arguably could be introduced without the need for a specific Treaty, through a change to the Council’s rules of procedure and by an increase in the efficiency with which the Commission makes documents available. Though piecemeal reform, it would help committees such as those in the UK parliament to ensure that ministerial accountability was upheld, EU legislation became more transparent and ultimately that citizens were better informed of their rights and obligations.

Notes 1 The Commons established a committee under the chairmanship of Sir John Foster (more commonly referred to as the Foster Committee) to evaluate options for the scrutiny of European legislative proposals. See HC 143 and HC 463 (1972–3). In the House of Lords the corresponding committee was chaired by Lord Maybray-King. See HL 194 (1972–3). 2 See T. St John N. Bates (1975) ‘The scrutiny of European secondary legislation at Westminster’, European Law Review, 22. 3 Standing Order 119 which provides the Terms of Reference of the committee requires it to consider the ‘legal and political importance’ of each document which is deposited in the House of Commons. 4 Between 1974 and 1999 the committee was known as the Select Committee on European Legislation. This was amended in 1999 to the European Scrutiny Committee in recognition of the fact that the committee’s task was no longer concerned exclusively with the review of legislative proposals. 5 On 11 February 2004 the Foreign Secretary, Jack Straw, announced that he had asked the

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Adam Cygan Modernisation Committee within the House of Commons to consider the establishment of a successor committee to the Commons Standing Committee which was set up to look at the Convention and then the IGC. One radical proposal for this new committee was the proposal that the successor would be a joint committee of both houses, charged with the task of reviewing the development of EU policy. Any such committee would not be intended to replace the existing scrutiny committees in both houses. See HC Debs, 11 February 2004, Col. 1415. See also note 48 below. Though regularly invited to attend the debate in the European Standing Committees the Commissioners rarely attend. The House of Commons established a National Parliament office in Brussels in 1999, which acts as the eyes and ears of the committee in Brussels. However, this office has only two members of staff. See HC 152-xxx (2001–2) at paragraph 107 where the committee proposed a regular six-monthly meeting with all UK MEPs to discuss the Commission’s Annual Work Programme and Presidency priorities. Other national parliamentary committees have their own individual relationships with MEPs; for example German MEPs have a right to attend all meetings of the Bundestag’s EU Affairs Committee. See Bundestag Rules of Procedure, Section 93a, paragraph 6. See the European Parliament’s resolution of 7 February 2002 on relations with national parliaments (P5-TA (2002) 0058) and the Napolitano Report of January 2002, which considered how a closer working relationship may be developed with domestic legislatures (A5-0023/2002). The Conference of European Affairs Committees is known by the acronym COSAC This is an informal body which comprises all the European Affairs committees from national parliaments and the European Parliament. Conversely the European Parliament and Council may agree on a proposal from the outset despite the objections of one (or more) national parliament(s) regarding content of the measure or Treaty base. In such circumstances the same problem arises of the European Parliament being an inappropriate institution for the national parliament to try and influence. It can, in such circumstances, only be left to the government to challenge the legality of the measure through Article 230 EC as in Case C-376/98 Germany v Council (Tobacco Advertising) [200] ECR I-8419. HC Debs, 17 November 1998 Col. 779. See note 1. For example the number of European Standing Committees has not remained constant and has fluctuated between five and two since introduced in 1991. See also note 31. Though the first significant amendment to the terms of reference only occurred in 1999. See HC Debs, 17 November 1998, Col 779. In practice this covers any EU document lodged within Parliament, of which there are approximately 1200 per year, and which are all considered by the committee. This change in the terms of reference brings the Commons committee in line with the Lords, though there remain significant differences as to how each committee handles any given document. More details of scrutiny procedures in the Lords are available at: www.publications.parliament.uk/pa/ld199798/ldbrief/ldscrueu.htm. This term is defined in the House of Commons Standing Order No 143. The definition is reproduced, in identical terms, in the Motion appointing the House of Lords committee, which is renewed at the start of each parliamentary session. Second and Third Pillar documents were brought within the terms of reference of the Commons committee as a result of the 1998 recommendations of the Modernisation Committee, mentioned above. This followed reports on the scrutiny process in the Commons prepared in 1996 and 1997, by the Select Committee on European Legislation (Twenty-seventh Report, 1995–6) and the Select Committee on Procedure (Third Report, 1996–7) respectively. A practical example of this can be seen in the scrutiny of the draft directive on minimum standards for granting in member states and withdrawing refugee status. The publication and debate of the European Union Committee’s Report, Minimum Standards in Asylum Procedures (Eleventh Report 2000–1 HL Paper 59) was not the end of the story by any means. Subsequent versions of the directive or of particular articles were furnished to the committees for scrutiny. Each was subjected to a rigorous critical examination by Sub-Committee E (Law and Institutions). There was correspondence with the government and two further meetings between the sub-committee and the

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minister and her officials in which the committee raised questions and sought further clarification of a number of issues, not least on draft articles affecting the rights of the individual and the level of standards being proposed. See Evidence by Caroline Flint MP on Asylum Procedures (First Report, Session 2003–4, HL Paper 8) and Further Evidence by Caroline Flint MP on Asylum Procedures (18th Report, Session 2003–4, HL Paper 106). The proposal remains controversial – see Parliament weighs legal challenge to asylum law, European Voice 31 March–6 April 2005. HC 791 (1997–8) Report of the Select Committee on the Modernisation of the House. Though debates can take place on the floor of the house but the scrutiny committee cannot compel the government to provide parliamentary time for this. The number of standing committees in existence has fluctuated since 1991 and has at any given time reflected both thematic priorities in the EU and the fact that finding MPs to staff the standing committees has proved difficult. For a detailed history of the European Standing Committees see A. Cygan (2001), National Parliaments in an Integrated Europea: An Anglo-German Perspective (The Hague: Kluwer Law International), chapter 4. HC 622-I (1988–9). The full procedure for debate in standing committee can be found in Standing Order No. 16. The debate concludes with the standing committee passing a motion which will require the final approval of the Commons chamber. For more detail on the mechanics of the scrutiny process see Cygan, op. cit., p. 31. HC 152-xxxiii (2001–2) Democracy and Accountability in the EU and the Role of National Parliaments and HC 152-xxx (2001–2) European Scrutiny in the Commons. See for example evidence presented by the Select Committee on European Legislation to the Select Committee on Procedure, HC 622-I (1988–9), paras 43–74. HC 152-xxxiii (2001–2) p. 22, paragraph 33. HL 35-I (1991–2) Report from the Select Committee on the Work of the House. This relatively unknown series of reports contains a mass of varied information about the work of the committees. HL 58 (1994–5). HL 95 (2004–5). HL 102 (1986–7). Resolution of the House of Commons of 17 November 1998 modifying the resolution of 24 October 1990, which replaced a 1980 resolution, which in turn replaced successive ministerial undertakings to similar effect. Resolution of the House of Lords of 6 December 1999. Digby Jones (2005) UK Parliamentary Scrutiny of EU Legislation (London: The Foreign Policy Centre), p. 5. House of Commons European Scrutiny Committee, The Work of the Committee in 2004 (Sixth Report 2004–5), para 14. OpenEurope, Getting a Grip: Reforming EU Scrutiny at Westminster, p. 17. The report states that the Government ignored the Reserve on 77 occasions in 2005. The Report is available at: www.openeurope.org.uk/scrutiny.pdf Evidence of 11 December 2003. See HC 463-II (1972–3) paras 723–5. Evidenced clearly through the Factortame litigation and the UK’s failure to appreciate the impact of the Merchant Shipping Act 1988 on the rights contained in Article 43 EC. See HL 48 (2001–2) A Second Parliamentary Chamber for the EU: An Unreal Solution to some Real Problems and HC 152 xxxiii-I (2001–2) Democracy and Accountability in the EU and the Role of National Parliaments. HC 63-xxiv, (2002–3), p. 7, para. 8. Protocol 1 on the Role of National Parliaments in the European Union. Select Committee on Modernisation of the House of Commons Second Report, Scrutiny of European Business (2004–5, HC 465).

10 Ireland: enhanced parliamentary scrutiny of European affairs But is it effective? Patricia Conlan Introduction Ireland, together with Denmark and the United Kingdom, acceded to the European Communities in 1973.1 Accession followed the third amendment2 of the Constitution, agreed to by a sizeable majority3 of the electorate in a referendum. Subsequent European treaties have been ratified following the successful outcome of referenda, albeit with reduced participation and reduced majorities.4 The combined effect of the amendments has been to give constitutional authority for a significant transfer of legislative, executive and judicial sovereignty to the European Communities – and, more recently, to the European Union.5 In addition to the constitutional amendments, each treaty has been accompanied by a domestic statute6 incorporating the relevant treaty, in the dualist manner.7 The most recent constitutional amendment, which allowed the ratification of the Treaty of Nice, was successful only on the second attempt at holding the referendum.8 There were many reasons9 identified as having influenced the negative outcome of the first referendum on the Treaty of Nice in 2001. Among the many issues10 raised during the pre-referendum debate had been the perceived democratic deficit in relation to national parliamentary scrutiny of European legislation.11 Amended parliamentary scrutiny of European developments was put in place in July 2002, on an interim, non-statutory basis. This was prior to the second Nice referendum. A Private Member’s Bill12 had initiated the changed procedures. These were given a statutory basis in October of that year, after the second Nice referendum. 13 However, while the analysis of the attitudinal survey referred to above14 indicates that awareness of the enhanced Oireachtas scrutiny arrangements did not affect voting choices in the second referendum, the view has been expressed, on many occasions, that the perceived democratic deficit may have contributed to the failure of the first Nice referendum,15 and thereby led to the enhanced scrutiny procedures. The new procedures draw on statutory and non-statutory mechanisms. These latter, in particular, allow for ease of further refinement – in response to experience and criticism. This flexible combination – and the response to criticism – suggest a commitment to the scrutiny process. However, it would be premature – at the least, and probably unwise – to make too many claims for the efficacy of the scrutiny system in ‘controlling’ the government.

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This is due to both European and domestic factors. The European legislative process is a complex one, as is policy formation in general. Extended use of qualified majority voting (QMV) and the inter-institutional balance in the legislative process are two examples. Domestically, apart from the volume, which has been acknowledged judicially as we shall see, there is also the complexity of the subject matter. These latter aspects place considerable burdens on the parliamentarians involved. It must be remembered that these are largely generalists, with competing demands and pressures generated by domestic politics. Finally, there are also the domestic constitutional constraints in terms of legislative responsibility. This chapter will examine the evolution in Ireland of parliamentary scrutiny of European issues, focusing on the current arrangements and specifically the role of the Sub-Committee on Scrutiny.16 We can see the early gatekeeper role envisaged for the Oireachtas (the Irish Parliament), as well as the realities of poor resourcing and almost no debate as envisaged by the legislation (on the reports arising from the scrutiny process). This can be contrasted with the flexible scrutiny process put in place post-Nice. The constitutional, legislative, parliamentary, political and main judicial developments which provide the context for the current scrutiny system will be outlined. Primary sources will be utilized, supplemented by secondary literature where appropriate. There have been two annual reports17 of the Joint Committee on European Affairs, as provided for in the legislation. These provide a useful overview of the material scrutinized in the period since the enhanced scrutiny procedure was put in place. However, they are only part of the picture. The significant role of the sectoral committees in the process also bears close inspection. Due to length constraints, the emphasis is on the overall system rather than individual sectors. These merit a more focused evaluation. A final conclusion on the effectiveness of the scrutiny process – in terms of controlling the government has to be deferred. More sectoral research is needed, as well as a longer time span. This is very much a work in progress.

The Oireachtas: political parties and committees Bunreacht na hÉireann (the Constitution of Ireland) describes Ireland as a sovereign, independent, democratic state.18 The bicameral Oireachtas is modelled on the Westminster parliament.19 The Dáil (lower house) comprises (currently) 166 deputies (Teachtaí Dála – TDs) elected in 42 multi-seat constituencies.20 The election is conducted by means of proportional representation (PR) – the single transferable vote (STV).21 The Seanad (Senate, or upper house) has 60 members, drawn from three distinct groups, some of whom are elected and some of whom are appointed by the Taoiseach (Prime Minister). The composition of the upper house does allow for a more reflective, and certainly in theory, for a more vocationally based, input into the legislative process. There has even been the suggestion that the Seanad should take on the role of scrutinizing European legislation.22 However, this proposal did not find favour, although, as we shall see,

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members of the upper house are members of the Joint23 Committee on European Affairs, and of its Sub-Committee on Scrutiny. While historically, the major political divisions in Ireland arose over questions of national independence,24 the current political party landscape is more diversified. However, it is still difficult to fit the major centre-right Irish parties, Fianna Fáil and Fine Gael, into the principal European families,25 although in the European Parliament they do seek out broader political groupings with whom to associate. They were both strong advocates of accession in 1972, and for the most part remain so, although some individual vaguely Eurosceptic voices were heard around the period of the first Treaty of Nice referendum.26 For some of the smaller parties, the Greens and Labour, for example, this European relationship is advantageous from a broad networking point of view. The Green Party has contributed enormously to the debate on European issues, frequently offering informed criticism – such as in relation to the first referendum on the Treaty of Nice.27 The Labour Party is the oldest political party in the State. Although the party was opposed to European integration initially, it has become a fervent advocate of matters European in recent years. Oireachtas committees were few28 in number until the 1980s.29 It is interesting to note that the initial Joint Committee on the Secondary Legislation of the European Communities was one of the first, having been established in 1973.30 Although there have been mixed experiences with the committee system as a whole31 one of the more positive developments has been the role played by the committees in the legislative process (committee stage). The current committees’ configuration emerged after the 2002 general election. This is directed broadly at matching government departments and (scrutinizing) committees. Most are joint, and sit as such most of the time, except for the third stage of legislation, when only TDs may participate.32 Membership is a matter for the party whips, and is broadly reflective of party strength rather than of particular expertise. This is an important point to bear in mind when reflecting on the scrutiny process, not least given the complexity of European legislation and the limited resources available to the individual committee members (as opposed to the Committee and SubCommittee). The multi-seat constituencies and the demands of constituents for ‘their’ TD to be seen to be active locally could be seen as disincentives to committee membership. There is also the fact that one’s party colleagues in the same (multiseat) constituency may be involved in more high-profile (and locally more appreciated) activities. The work of committees can be demanding and timeconsuming, but with rare exceptions, does not enjoy a particularly high media profile. Media reporting is also a contributor to the scrutiny process. The chairman is usually a government TD. This role has been described as a consolation prize for TDs who have missed appointment as a cabinet minister or minister of state.33 However, interestingly, the Joint Committee on European Affairs is one of two joint committees currently chaired by a member of the opposition.34 While originally the same TD served as chair of both the post-2002 Joint Committee on European Affairs and its Sub-Committee on Scrutiny, this has changed so that there is now a separate chair for each, both drawn from the opposition.35 This

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deferral to opposition members as chairs of the committee and its sub-committee could be seen as an example of bi-partisanship towards matters European, or alternatively as a lack of appreciation of the importance of, or even lack of interest in, Europe, on the part of the government. Without making any judgement on the matter, what one can say is that it does allow for a more objective approach, unencumbered by (government) party political loyalties. Given the important role for the chairs of the committee and the sub-committee in steering the scrutiny process36 a more distant relationship with the government party (parties) is preferable.

Constitutional prerogatives and capacity to influence European developments As we have seen above, prior to Ireland acceding to the European Communities in January 1973, the Constitution37 of Ireland was amended to ensure that there was no actual or potential conflict with the obligations necessitated by membership of the Communities.38 Of particular importance for our topic, the 1972 constitutional amendment ensured that there was no conflict between the constitutionally39 conferred exclusive law-making powers of the Oireachtas, and the legislative competence exercised in accordance with the provisions of the European Communities’ treaties.40 Constitutional protection was thereby afforded to ‘laws enacted, acts done, and measures adopted necessitated by the obligations of membership’. The scope of this protection, specifically what is necessitated, has received considerable judicial scrutiny41 and as we shall see below, impacts on the choice of legislative instrument – and accompanying parliamentary scrutiny – or lack of it. There have been further amendments of the Constitution to accommodate ratification of the Single European Act, the Treaty on European Union42 and the Amsterdam and Nice Treaties. The amendments43 to accommodate these latter two treaties introduced into the Constitution specific requirements for parliamentary approval before the State could exercise the options or discretions44 referred to. As we shall see below, there are specific scrutiny procedures put in place to deal with these eventualities.45 In addition, there is a prohibition on the State adopting a decision taken by the European Council to establish a common defence pursuant to article 1.2 of the Treaty of Nice where that common defence would include Ireland. This amendment was one of the incentives to encourage a ‘yes’ outcome to the second Nice referendum, which together with the two Seville Declarations help to elucidate this article.46 Thus a referendum would be required before Ireland could be party to such a decision. This must be seen as the ultimate in domestic scrutiny of European issues. The European Communities Act 197247 is the dualist conduit whereby the treaties and the acquis as well as future acts adopted by the Communities’ institutions are binding on the state and part of domestic law as provided for in the treaties. This latter point allows for the distinction between the legislative measures48 and their entry into the domestic legal order. The same statute49

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provides for ministers to make regulations to enable section 2 to have full effect. The use of the term regulations in this context is unfortunate. What is meant is delegated legislation, or Statutory Instruments (SIs). Recourse to these measures and their lack of accompanying parliamentary scrutiny have been the subject of judicial scrutiny.50 Statutory Instruments are also used in the normal domestic sense,51 allowing a relevant minister, based on an enabling act, to roll out legislation, without the necessity of going through the full parliamentary process. Going through the full parliamentary process brings with it different stages of scrutiny, both within the democratic process itself, and from the various organs of the media which focus on parliamentary and political matters. Section 3(2) provides that such regulations may contain such ‘incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying with or without modification, other law, exclusive of this Act)’. The only restriction provided for is that such regulations cannot create an indictable offence. This latter qualification has proven to be important where delegated legislation was used which purported to amend existing statutes.52 The creation of indictable offences is deemed to require the express agreement of the Oireachtas, and therefore to require democratic scrutiny.53 The critical test to be drawn from the case law54 of the Supreme Court is that of the extent of ‘policy and principle’55 contained in the directive, rendering transposition by primary legislation (and thus parliamentary scrutiny) unnecessary,56 whereas if discretion in relation to ‘policy and principle’ were left to the minister, this choice would require primary legislation.57 Thus, for domestic scrutiny to have any democratic value, it has to be scrutiny prior to the adoption of the measure at European level. Once adopted, in the absence of any discretion for the minister, parliamentary scrutiny has been described as ‘artificial’ and ‘sterile’.58 There has also been recognition of the realpolitik, the volume of European law, and the obligation on Ireland to transpose these measures within the time frame agreed – as well as the nature of the EC legal system.59 If primary legislation were the only mechanism allowed, this would severely curtail the state’s ability to fulfil its obligations.60 The 1972 statute also gave what could broadly be termed a scrutiny role to the Oireachtas in that such regulations as provided for under section 3(1) were to have statutory effect (but) unless they were confirmed by an act of the Oireachtas, passed within six months, they were to cease to have effect. This did not affect the validity of anything done while they were in force. This was a cumbersome approach. However, it can be explained by bearing in mind the concerns expressed by deputies and senators when the European Communities Act 1972 was going through the Oireachtas. Deputies and senators wanted national parliamentary scrutiny to be reinforced.61 However, only one such specific statute was passed before this approach was changed – and it is difficult to infer any real parliamentary scrutiny of the measures covered by this statute. 62 A new regime was introduced by the European Communities (Amendment) Act 197363 which repealed section 4 of the 1972 Act. This provided that the regulations under

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section 4 were to have statutory effect unless the Joint Committee on the Secondary Legislation of the European Communities, which was given a statutory basis by the European Communities (Amendment) Act 1973, recommended that they be annulled, within one year, without prejudice to the validity of anything done while they were in force. This continued to imply a strong scrutiny role for the Oireachtas. However, commentaries on the operation of this Joint Committee convey a graphic sense of the enormous task faced by a grossly under-resourced committee.64 The work of the Joint Committee on the Secondary Legislation of the European Communities was subsumed into the Joint Committee on Foreign Affairs in 1993 and a separate Joint Committee on European Affairs was established in 1995.65 The European Communities (Amendment) Act 1993 discharged a number of tasks. In addition to providing for the changed committee66 it also fulfilled another task of relevance to our topic. It confirmed regulations made under section 3 of the Act of 1972.67 In addition, it confirmed the extended time period under the pre-independence statute which had been challenged in the courts.68 This 1993 Act thus removed any residual doubts about the transposition of directives by means of delegated legislation as specified and specifically the changes to the Petty Sessions (Ireland) Act 1851, section 10(4).69 This approach suggests more pragmatism than critical parliamentary scrutiny of the measures involved. The committee system established by the European Communities (Amendment) Act 1995 was replaced by the non-statutory procedure established in July 2002, which in turn was replaced by the statutory scrutiny process established by the European Union (Scrutiny) Act 2002. As we have seen, these latter changes addressed the criticisms of the lack of domestic scrutiny of European issues, heard during the first Nice campaign. However, while they may suggest pragmatism in the first instance, the actual operation of the enhanced procedures – in particular their flexibility – does not suggest that this is an overriding consideration.

Executive–legislature relations and power and influence on European issues The constitutional numerical restriction on membership of the government is somewhat modified by the appointment of what are now called Ministers of State (sometimes referred to as junior ministers).70 Apart from anything else, these posts reflect the growing complexity of modern life and the need for more ‘manpower’ to cope with the increased tasks. These junior ministers are distributed among the Departments of State. For some years there has been one junior minister71 at the Department of Foreign Affairs, concentrating on European affairs – although interestingly this was not the case immediately prior to the first Nice referendum.72 The absence, at that time, of a minister with specific responsibility for European affairs in the Department of Foreign Affairs, has been described as a major gap. This was remedied following the 2002 election. In general, policy initiatives come from government73 rather than parliament. It is

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therefore interesting to note, as already indicated, that the initiative for the current statutory arrangement for national parliamentary scrutiny of European affairs came from a Private Member’s Bill tabled by the Labour Party74 – albeit a much changed Act. However, this is not a true reflection of opposition party influence on European issues, but more a reflection of the bi-partisan approach to Europe. As regards the broader issue of executive–legislature relations and influence on European issues, it is worth bearing in mind that there is a well-established view that parliamentary scrutiny of government behaviour has three main tools – debates, parliamentary questions and committees.75 Historically, the capacity of the Oireachtas to supervise and influence the conduct of government utilizing these methods has not been viewed positively,76 not least given the procedural framework available. However, it must be recognized that this has changed, and continues to change.77 It is also a fact that the numerical balance in any legislature will ensure the legislative output. In addition it must be borne in mind that the two main parties have been advocates of the European project from the beginning, and the Labour Party has become a strong supporter. These (together with the Progressive Democrats and the Democratic Left, now part of the Labour Party) have formed the governments since accession. It is not unreasonable to conclude that a degree of complacency among the broad proEuropean political elite contributed to the rejection of the first Nice referendum, as few resources were devoted to convincing the electorate to vote ‘yes,’ whereas proponents of the ‘no’ vote were very active. The ‘no’ proponents included two of the parties in the Dáil, the Green Party and Sinn Féin. As already indicated above, the Green Party has contributed enormously to the debate on Europe, and while making informed arguments on issues as they arise (in parliament, and elsewhere), has always underlined its commitment to the European ideal. Having opposition deputies as chairmen of the committee and sub-committee does allow for less government control over the outcome of the scrutiny process. Bearing in mind the reality of political and parliamentary life it is probably fair to say that the strengthened parliamentary committee scrutiny system represents the greatest potential for influencing government in relation to European issues. This does require considerable resourcing – training in the nuances of European issues, backed up by research and informed debate. This is a challenge. Being able to lay claim to objectively verifiable evidence of power and influence over European issues is more problematic – for the reasons outlined above.

Information available to allow the parliamentarian to follow developments As we have seen above, the current parliamentary committee configuration, including the current Joint Committee on European Affairs and its Sub-Committee on Scrutiny, emerged in 2002. It should also be noted that the scrutiny role of the joint committee and the sub-committee is augmented by the various sectoral committees. This is important in the context of our examination of the evolution (and operation) of the enhanced scrutiny process. The sectoral committees have a more targeted focus, while the Sub-Committee on Scrutiny has more of a general, filtering role.

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Prior to the entry into force of the 2002 Act in October, an interim non-statutory system had been set up in July 2002 replacing the scrutiny system which had operated since 1973, having undergone several amendments in the intervening years, as we have seen. This non-statutory interim arrangement allowed the strengthened scrutiny system to operate prior to the second referendum on the Treaty of Nice. The Government could be seen to be addressing the ‘democratic deficit’ which had been criticized during the first referendum, although as we have seen above, it is unclear if it did influence voters during the second referendum. The material provided was quite limited: ‘Ministers to forward draft legislation (i.e. draft Directives, draft Regulations and draft proposals under the Third Pillar) together with an explanatory memorandum to the Select (sic) Committee on European Affairs’.78 A striking feature of the current regime is not only the increased scope of material to be scrutinized but also the provision of explanatory, background information, and specific timelines, rooted in statutory and non-statutory sources. The statutory aspect could be seen as a long-term commitment of the government to the scrutiny process, while the non-statutory sources have proved to be very effective in their ability to respond to calls for change, as we shall see presently. The purpose of the European Union (Scrutiny) Act 2002 is ‘to provide for the scrutiny by the Houses of the Oireachtas of certain proposed measures,79 to amend the European Communities Act, 1972, and to provide for related matters’. The time limits for scrutiny of measures by the Oireachtas are specified.80 This is to be as soon as practicable after a proposed measure is presented by the Commission or initiated by a member state. The measure is accompanied by a statement from the minister, outlining the content, purpose and likely implications for Ireland of the proposed measure – as well as any such other information s/he thinks appropriate. The minister shall have regard to any recommendations, whether from either house or from a committee (of either or both houses), although there is no time limit indicated for such recommendation or for a minister having regard to it. There are two possible exemptions to the prior parliamentary scrutiny route anticipated by the Act. If the Minister forms the opinion that time does not permit prior parliamentary scrutiny,81 this will not delay the processing of the proposal. However, in such cases, and where the measure is adopted (in accordance with the relevant European decision-making process), the minister will cause a copy of the text of the measure to be laid before both houses, together with details of the implications for Ireland and the circumstances of its adoption – as well as any other information the minister considers appropriate. If the minister considers that a proposed measure is confidential, s/he may make a report to either or both houses or to a committee of either or both as s/he ‘deems appropriate in the circumstances.’82 This requires mutual trust if it is to be accepted. An interesting extension to the statutory regime is to be found in the Orders of Reference.83 These are wider in scope than the 2002 Act. They provide for scrutiny in the context of European Union issues and measures to be taken by the Council of Ministers of the European Union …

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The broader material scope can be seen in the specific references to measures and the open-ended nature of a number of the categories – ‘as it may select,’ including reference to ‘issues’ taking the material scope beyond legislation. Inclusion of delegated legislation, ‘regulations under the 1972 Act’ as amended, as well as statutes ‘necessitated by the obligations of membership of the European Communities’ carry echoes of some of the legal challenges where parliamentary scrutiny had been raised.84 However, an innovative contribution to the flexibility of the scrutiny process, and in particular the material scope, can be found in the Guidelines for Departments issued by the EU Division of the Department of Foreign Affairs. These were initially issued in March 2003 and adjusted in December 2003 to take account of some ‘teething problems’ experienced. A further review of the procedures for the submission of draft

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First Pillar Council Decisions is provided for.85 Apart from the range of draft measures to be circulated, these guidelines also set out the accompanying information to be provided, and the time limits. Provision is made for exceptional circumstances – where there is insufficient time, confidential proposals and Title IV European Community Treaty, and Title VI Treaty on European Union, measures. The special scrutiny arrangements86 to deal with confidential measures87 – in areas arising from the Treaty on European Union are set out in the guidelines. The first step is a confidential briefing provided for the chairman of the sub-committee. This can be in writing or orally. The sub-committee chairman can decide whether or not the chairman of the relevant sectoral committee is to be briefed at this stage. Should the chairman decide to consult or involve other members of the subcommittee in the confidential briefing, he has to get the prior agreement of the minister involved. There are precise conditions for protecting the confidentiality of the information provided under a range of headings. After adoption, the measures come to the sub-committee. The special arrangements for the confidential measures underline the importance of the role of chair of the Sub-Committee on Scrutiny and thereby the importance to be attached to choosing the ‘right’ chair. There are also special arrangements in relation to measures arising under Title IV of the EC Treaty and Title VI of the Treaty on European Union. These latter measures are subject to the provisions of article 29.4.6 of the Constitution, whereby certain ‘options or discretions’ require prior approval of the Oireachtas. As regards the general material scope these are the draft measures set out in the 2002 Act, a range of draft Council Decisions in the First Pillar and Commission Green and White papers. Information notes are to be provided outlining the ‘nature and purpose of the proposal and containing an initial indication of possible implications for Ireland’. Importantly, the information note should highlight the significance of the proposal and indicate the expected time limit within the European-level decision-making process. The lead department, having liaised with other departments having an interest in the proposal, will include the views of these other departments in the papers being submitted with the measure to be scrutinized. The revised guidelines of 12 December 2003 issued by the EU Division of the Department of Foreign Affairs refer specifically to ‘the submission of draft First Pillar Council Decisions’ (only – excluding other Pillars or Commission Decisions or Decisions not addressed to all member states). This revision was ‘introduced to fulfil the spirit of the Government’s scrutiny procedures to the greatest possible extent’. This reference to the spirit of the scrutiny procedures is particularly striking in light of the strong criticism uttered when it was established that a Council Decision, dealing with guidelines for funding human embryonic research, was to be discussed at a Competitiveness Council meeting on 27 November 2003 without the Sub-Committee on Scrutiny having been given advance notice of the proposal, and thus no opportunity to carry out prior scrutiny. As the measure was a draft Decision under article 166 European Community Treaty (and not a Regulation or Directive) it had not been referred for prior scrutiny. This loophole had not been anticipated. It is an example of the importance of a well-informed chair who can

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pursue actual or potential lapses in fulfilling both the spirit and the letter of the enhanced scrutiny procedures. The sub-committee did raise the question of amending the Act itself, but in the event the revision of the guidelines enabled a swift response to this loophole to be put in place.88 The established rules as regards explanatory information notes apply. The minutes of the sub-committee outline the concerns articulated, in light of the subject matter of the Decision, and its recommendation that the measure be voted against at the Council meeting until the scrutiny process could be completed. It recommended that the Oireachtas should have the opportunity to complete the scrutiny process and deal with all relevant concerns – in light of the constitutional, ethical, moral, administrative and other implications. The measure was referred to the Joint Committee on Enterprise, Trade and Employment for further detailed scrutiny and to the Joint Committee on Health and Children for information. The issue was raised in parliament89 and caused the leaders of the Roman Catholic Church to meet the Taoiseach to express concerns about government support for ‘the (funding) guideline’.90 This experience serves to underline the importance of informed (prior) scrutiny. It could also perhaps be said to support the choice of an opposition member as chair, thus avoiding any potential party loyalty clash. While the Act speaks of provision of the measure ‘as soon as practicable’ after presentation or initiation, the guidelines provide for a period ‘within four weeks of formal circulation by the General Secretariat of the Council.’ This four-week period can be extended, if the proposal is complex, and/or where legal advice may be required. Commendably, there is provision for the lead Department to inform (the Oireachtas) within two weeks, of receipt of the proposal and to indicate a ‘reasonable’ time frame within which the information note will be forthcoming. There is a timeline of three days from receipt of the proposal for the lead department to confirm its intention to prepare the information note. As already indicated, the Sub-Committee on Scrutiny shares the scrutiny role with the sectoral committees91 – which is where the detailed scrutiny, more properly, can take place. If the proposal is referred for further scrutiny, the lead department will take the lead in dealing with the sectoral committee(s) concerned. As we have seen, in the First Annual Report, the then chair referred to the legislative requirements providing for the timely submission of documents (as well as) arrangements (which) were agreed between the sub-committee and each government department to ensure that, insofar as possible, all proposals would be submitted with the requisite supporting documentation in good time.92 However, despite the timelines laid down, the committee expressed concern about the number of proposals which were adopted prior to scrutiny. This is anticipated in the legislation,93 subject to certain requirements. However, if this procedure were to be overly used, it would defeat the purpose of the scrutiny regime and thus the democratic nature of parliamentary scrutiny. The Second Annual Report had expressed concern that the percentage of legislative proposals and other documents adopted prior to scrutiny had risen further in the period under review – from 16 per cent in the period covered by the First Report to

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21 per cent in 2004.94 This increase should also be understood against the background of an increased ‘throughput’ of measures to be scrutinized – up from 371 in 2003 (excluding the 72 scrutinized in the period October to 31 December 2002, covered by the First Report) to 569 in 2004. The Third Report shows that the number of documents scrutinized in 2005 was down to 440. This reduction is attributed to two developments. 2004 was the final year of the outgoing Commission, and also the year of Enlargement. It is a measure of the importance placed on fulfilling the spirit of the scrutiny system that remedial steps were taken in December 2004 to amend the early warning system that had been introduced in April 2004 – specifically in relation to trade-related proposals. The Third Annual Report indicates a very significant decrease in the number of measures adopted prior to scrutiny, down to 23 in 2005. There were two main reasons for this. Many of the 2004 measures had been due to enlargement, with a short time frame. In addition, the Early Warning System, introduced in 2004, had kicked in.95 Procedures96 are included to assist in the resolution of any difficulties arising as to which department is to be the lead department. Given the important role of the lead department in providing information to the Sub-Committee on Scrutiny and to the sectoral committees, this is useful in ensuring that time is not lost in identifying who is to take responsibility for providing timely information, to facilitate scrutiny. Although the Sub-Committee on Scrutiny initially planned its meetings on a fortnightly basis97 the ‘Third Annual Report’ shows that this rhythm has not been maintained. Prior to the meeting the information as outlined above will have been provided and there will have been preparation involving the Clerk and Policy Advisor. In theory these are public sessions, but in practice members of the public would have to have sought, and been granted, permission to attend. From time to time officials from relevant departments attend to present a particular measure. From personal observation these presentations can contribute to the learning curve of members. Sometimes other persons might be invited to make a presentation. Before each monthly meeting of the Council of Ministers, the Minister for Foreign Affairs or the Minister of State comes before the Joint Committee to present and discuss agenda items, and ‘where appropriate’ the government’s position on these.98 In general, the sub-committee’s meetings are not lengthy. This may have to do with the fact that the detailed scrutiny is done by the sectoral committee. From observation, the chair proposes a particular method to the sub-committee – to refer to a sectoral committee for further scrutiny or for information, to agree that no additional scrutiny is warranted by a sectoral committee, to agree to defer pending further clarification or to note – in the event that the measure has been adopted, and the sub-committee accepts the exceptional circumstances. The sectoral committees are important elements in the scrutiny process as they carry out the detailed scrutiny in accordance with their Orders of Reference.99 These state that a ‘committee must consider a proposal referred to it for scrutiny by the Sub-Committee on European Scrutiny’.100 The sectoral committees can elect to scrutinize documents which fall within their remit, even if not referred. This twinpronged approach allows for sectoral and European expertise to be developed within the relevant committees. However, turnover in the membership of the Sub-

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Committee on Scrutiny is not conducive to building up expertise. Individual research resources could temper any disadvantage arising from membership turnover, as they would allow new members to be exposed to targeted briefings which would accelerate the learning process. The complexities of the European Union and its component parts do not lend themselves to easy assimilation. An efficacious scrutiny process depends on a well informed approach. It is a formidable task. The combination of the European Affairs Committee and its Sub-Committee on Scrutiny with the sectoral committees does allow for a mix of inputs and views, which go some way to increasing the actual scrutiny process. The broader parliamentary scrutiny role is fulfilled in several ways. The Act requires each minister to submit a report to each house not less than twice yearly. This report is to cover developments within the European Communities and the European Union. The government is to make an annual report to each house on developments in the European Communities and European Union. The Joint Committee on European Affairs is to make a report to each house, on the operation in the preceding year, starting with 2003 – as we have seen. The lack of parliamentary debate on the reports required under the European Communities Act 1972, and thereby the lack of broader parliamentary scrutiny, albeit retrospectively, was much criticized in the past, as were delays in publishing the six-monthly reports.

Europeanization of domestic political debate and policy-making As has already been mentioned, accession to the European Communities in 1973 was supported inter alia by the two main political parties (Fianna Fáil and Fine Gael) and by business and farming interests. The Labour Party was not a supporter of accession, but has become so, over the course of membership. It is therefore not unreasonable to describe the broad national political culture as pro-European, with some critical voices, as we saw in the Nice debate. While a strong party whip system operates there is also the phenomenon of the ‘independent’ TD – usually voted in on the basis of supporting one local initiative or another.101 Irish domestic politics has been described as bearing the features of ‘clientelism’ – although the actual extent of this has been questioned.102 If one considers that there are limited posts of influence at any one time, multi-seat constituencies, with rivals not just from other political parties but also from within one’s own political party, and given a level of service expected by constituents, it would be difficult to discuss the Europeanization of political debate without bearing these factors in mind. The politician wants to be re-elected, and preferably to be in power. It is also not unreasonable to expect the voter to be concerned about the impact of any policy on ‘his’ patch. Equally, given the context outlined above, it is not unexpected to find that local issues are to the fore,103 although these can be merged with ‘European’ issues.104 Specifically as regards European issues and the promotion of Irish interests, the (original) approach of Irish policymakers has been described as pragmatic, with a

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gradual move to a more considered approach.105 It has been noted that the rejection of the first referendum on the Treaty of Nice acted as a catalyst for capturing an increased political attention of the Taoiseach and key ministers for European issues106 and, as we have seen, contributed to the greater emphasis on scrutiny of European issues. The appointment of a Minister of State in the Department of Foreign Affairs with specific responsibility for European Affairs at this time, and the institution of a National Forum on Europe107 are just two examples of the renewed political emphasis on matters European. We have seen how the legislative role of the Oireachtas has been affected by membership of the European Communities (and Union). This has been accommodated by the constitutional amendments and by the domestic legislation transposing each new treaty, or more correctly, part of each treaty, from the time of the Single European Act onwards. The judicial pronouncements on the extent of the license granted to the Government by ‘the people’ in 1972,108 have affected the choices available to government. Democratic scrutiny is scrutiny carried out prior to adoption of a measure. Given the nature of the EC legal system, post adoption debate in parliament has been described as sterile.109 Recourse to delegated legislation has also been subject to judicial scrutiny.110 The test is one of the level of ‘principle and policy’ contained in the European measure, and the ensuing discretion or lack of it, left to the relevant minister.111 Taking all of these developments into account it would be reasonable to say that membership of the European Communities (and Union) has led to a considerable Europeanization of Irish constitutional, legislative, parliamentary, judicial, as well as political – with a small ‘p’ – developments. Perhaps because of this, the pro-European elite were quite shocked at the defeat of the first Nice referendum, and to find Ireland no longer in the role of the ‘model member state’.

Effectiveness/reality of parliamentary control of government – evolution As we have seen, there have been considerable changes, since accession, in the way in which European issues are processed and scrutinized by the Oireachtas. The early years were characterized by a belief that the Oireachtas could confirm or annul European measures – thereby affecting their application in Ireland.112 The ineffectiveness of this approach can be seen in the only specific113 confirmation statute adopted, where some of the measures being confirmed had not been translated into English.114 The work of the Joint Committee on the Secondary Legislation of the European Communities was characterized by an imbalance between the tasks to be done and the resources available.115 The lack of debate on reports – to which we have referred above – would not suggest an effective control tool. Inclusion of European affairs in foreign affairs in 1993, the focus of the Joint Committee on Foreign Affairs, coincided with the establishment of the Union by the Treaty on European Union – and the wider range of political affairs within the scope of this treaty. The year 1995 was important in that the establishment of the Joint Committee on European Affairs marked the broader focus moving from (solely) legislation to ‘affairs’. The work of the committee was aided by the appointment of consultants, whose task

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it was to bring to the attention of the joint committee ‘any significant matters arising from (this) legislation.’116 Somewhat bizarrely, following the consultants’ presentation, the joint committee would seek summaries on draft legislation as well as other information.117 This does not suggest a well-resourced, informed framework for carrying out (prior) scrutiny. The need for a timely, well-resourced, informed debate was recognized by the joint committee,118 as was the need for structures ensuring ‘systematic briefing and consultation of the Committee on matters for decision’ (at European level).119 Resourcing and debate of the reports required under legislation have been two recurring120 themes121 since the first tentative steps122 in the scrutiny process. The volume – even though there was a numerical decrease in 2005, as seen in the Third Annual Report - and particularly the nature of the issues, emphasize the need for adequate resourcing of the scrutiny role. If we focus solely on the European aspects of the scrutiny process, it must be acknowledged that the Joint Committee and its Sub-Committee have experienced increased (albeit fluctuating) resources since inception. However, individual members would benefit from personal exposure to the nuances of European issues, to allow them to discharge their scrutiny duties in a fully informed manner. Individual responsibility must be distinguished from the Sub-Committee/Joint Committee role. A well-briefed membership can contribute to a balanced scrutiny process, particularly, where as we have seen, the chairman plays such a decisive role. If the Constitutional Treaty were to enter into force, the increased role for national parliaments will place further demands on the national process. It remains to be seen how the resources referred to in the 2004 Annual Report of the Houses of the Oireachtas Commission and in its Strategic Plan for 2005-6, will contribute to improving the work of the committees in general, and the scrutiny role of the committees’ membership in particular. Perhaps the reference to fulfilling the spirit of the scrutiny system, and the speedy response to the criticism at the failure to refer the Decision dealing with stem cell research funding to the Sub-Committee on Scrutiny, can be seen as concrete examples of the effectiveness of parliamentary control of government in EU matters. They certainly suggest a public commitment to the scrutiny process. There are other examples of the flexibility of the scrutiny framework and a willingness to respond to concerns. As we have seen above, the Scrutiny Act does allow for the adoption of measures prior to scrutiny in certain stated cases. As the norm is that measures be subject to prior scrutiny, departure from the norm should be exceptional. Despite the concerns recorded in the First Annual Report at the number of measures adopted prior to scrutiny, the Second Annual Report showed a continuation of this trend, from 16 per cent in 2003 to 21 per cent in 2004, and then decreased considerably in 2005.123 A high percentage of the instruments involved in 2004 concerned anti-dumping measures, thus falling within the competence of one department. This was addressed by the subcommittee and the department concerned reaching agreement in April 2004 to operate an early warning system, which was then refined in December 2004 on foot of a review of the system.124 However, as we have seen, the Third Annual Report recorded a considerable drop in the adoption of measures prior to scrutiny, as a result of the Early Warning System put in place. It is important to note

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the speedy response to the concerns expressed, which while not ‘control’ does acknowledge the scrutiny process from which the concerns arose. There is an appreciable difference in tone between the First Annual Report and the Second and Third Reports, particularly in relation to claims regarding influence exerted. This will be due to several factors. The scrutiny system has now operated for a further two years and the number of documents scrutinized has increased to 1,452. In addition, the composition of the sub-committee has changed, not least with a new chairman with a more focused role, as there is now a separate chairman of the joint committee. There have been changes to the informal aspects of the scrutiny framework, as we have seen, in relation to the operating guidelines in 2003 and the early warning system in 2004. The current chairman is not restrained in his language. Both the Second and Third Reports lay claim to having ‘direct influence on decision making at EU level’. 125 This claim is based on the ministerial meetings held every three weeks, on average, between the joint committee (and MEPs) and either the Minister for Foreign Affairs or the Minister of State for European Affairs, in advance of meetings of the General Affairs and External Relations Council (GAERC). At these meetings the Deputies, Senators and MEPs can ‘put questions to the Minister and make suggestions as to the approach to be taken on the agenda items’. There were ten such meetings in 2004 and nine in 2005.126 In the period covered by the First Report, either the Minister for Foreign Affairs or the Minister of State came before the Joint Committee prior to each monthly Council meeting to present and discuss the agenda items and, ‘where appropriate, the Government’s position on those items’. Members of the Committee and MEPs could put questions ‘and proposals to the Minister’127 – but there are no claims as to outcome. It will be recalled that the Scrutiny Act requires the minister to ‘have regard to recommendations,’ albeit without a timeline. It should also be noted that there is no scrutiny reserve. It must, however, be borne in mind, that even if the relevant minister were to follow a recommendation, it is possible that the actual outcome in the Council will not be affected because of the operation of qualified majority voting. This formal decision-making rule does not appear generally to be given much weight in deliberations on the scrutiny process, nor does the co-decision-making role of the European Parliament and the inter-institutional balance required. This is perhaps where the attendance of MEPs at meetings of the sub-committee and the joint committee can bear fruit, as links between the national and European processes. A more recent articulation of the Government’s declared commitment to the parliamentary scrutiny role of government activities (in the European Union) is to be found in its White Paper128 on (what it calls) The European Constitution. If the Constitutional Treaty were to enter into force, national parliaments would have an even more enhanced scrutiny role in two respects. These are in relation to sending a ‘reasoned opinion’ on a proposed measure, and in monitoring the application of the principles of subsidiarity and proportionality. While some parliaments have reached a decision on where the responsibility for these new tasks will lie, between the parliament in plenum and the European Affairs Committee, Ireland had not reached a decision when responding to the COSAC questionnaire.129 This matter was put ‘on hold’ during the period of reflection on the future of the Constitutional Treaty.130

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Conclusion The current provisions for Irish parliamentary scrutiny of European developments bear no relationship to the scrutiny role envisaged in the early years after accession. It was first thought that the Oireachtas could still have a strong influence on the application of European legislation in Ireland. This did not take account of the volume of instruments being adopted, nor did it allow for the unique nature of the European legal system or the decision-making process itself. The intervening years have certainly been accompanied by a learning process. The scope of the European treaties is now much wider than in the early years of the Communities. The direct elections to the European Parliament in 1979 and the increased legislative role for this institution are two examples of an increased democratic involvement on the European level. There have been developments at the national level too, as we have seen. If the Constitutional Treaty enters into force, national parliaments will have a greatly increased role in relation to the principles of subsidiarity and proportionality. The Irish scrutiny structure will have to adapt to the envisaged increased role. This will be yet one more challenge for the parliamentarians. What we have seen is an evolution, or as it is termed by the sub-committee, enhancement, of scrutiny – broadly defined – from the early days of Irish membership of the EU, to the current procedure. Undoubtedly the scrutiny process has ratcheted up considerably since those early days. The current statutory/non-statutory framework has shown itself to be flexible and to be able to respond swiftly to criticisms. These swift responses, and particularly the reference to fulfilling the spirit of the scrutiny system, certainly suggest a commitment to the scrutiny procedure. At the same time, given the complexity of the context in which scrutiny takes place, it would be unwise, if indeed not impossible, to make claims for an effective scrutiny system. There is greater debate. The committee system has been strengthened, and there is greater transparency associated with the process. The hard lesson from the first Nice referendum in 2001 may also have contributed to the desire to make the scrutiny system more rigorous. However, it is also true that given the volume and complexity of European issues, informed prior scrutiny, and thereby effective (democratic) ‘parliamentary control’ on government action, will require considerable resourcing. Any understanding of ‘parliamentary control’ in this context should be viewed through the prism of the constitutional and legislative constraints on the system. The enhanced procedures put in place post Nice, and the flexible approach to their operation suggests that these new procedures represent the potential for effective scrutiny. Whether their operation can be said to control the government, given the complexities of the European and national contexts outlined, is still very much open to debate. More focused research in specific topics would help our understanding of the impact of the scrutiny process in reality. For the present, it would seem more prudent to regard the operation and the impact of these enhanced scrutiny procedures as very much a ‘work in progress’.

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Notes 1 G. W. Hogan and G. F. Whyte (eds) (2003) J. M. Kelly: The Irish Constitution, 4th edn (Dublin: LexisNexis Butterworths), p. 514. 2 Bunreacht na hÉireann article 29.4.3. (1972), subsequently amended, now article 29.4.10. 3 Hogan and Whyte, op. cit., p. 514, n. 102. 4 Hogan and Whyte, op. cit., pp. 517–18, nn. 112–15. 5 Hogan and Whyte, op. cit., p. 519. 6 European Communities Acts 1972–2002. 7 See European Communities (Amendment) Act 1986, incorporating part of the Single European Act, 1992 Act, incorporating part of the Treaty on European Union, 1998 Act, incorporating part of the Treaty of Amsterdam, and 2002 Act, incorporating part of the Treaty of Nice. 8 Hogan and Whyte, op. cit., p. 518, n. 115. 9 Richard Sinnott, Attitudes and Behaviour of the Irish electorate in the Referendum on the Treaty of Nice, survey carried out by Millward Brown Irish Marketing Surveys Limited, www.ucd.ie/dempart/ workingpapers/nice2.pdf (24 November 2005). 10 See i.a. ‘Irische Suche nach Alternativen in der EU, Nizza-Gegner rügen die Regierungsstrategie’ in the Neue Zürcher Zeitung, Mittwoch 14.06.2001 Nr 13 3, where Martin Alioth reports on the criticisms of former, and then, Attorneys General, John Rogers and Michael McDowell, regarding parliamentary scrutiny of European legislation as well as this author’s article on the required (democratic) response to the rejection of the Treaty of Nice: www.ireland.com/newspaper/ireland/2001/0611/ hom13.htm (24 November 2005). Patricia Conlon, The Irish Times 24 Nov.1995. 11 Joint Committee on European Affairs, First Annual Report on the Operation of the European Union Scrutiny Act 2002 10 October 2002 to 31 December 2003, p. 2, www.oireachtas.ie (15 December 2005). 12 Private Members’ Bills have a poor record of success. See i.a. Eunan O’Halpin (1996) ‘Irish parliamentary culture and the European Union: formalities to be observed’, in Philip Norton (ed.), National Parliaments and the European Union (London, Frank Cass), pp. 124–35, 125; Mary T. W. Robinson (1974) ‘The role of the Irish parliament’, Administration, 22, 1: 6. 13 See i.a. Annual Report of the Houses of the Oireachtas Commission 1 January 2004 to 31 December 2004, Dublin: Stationery Office, p. 45. 14 Sinnott, op. cit., p. 17. 15 See i.a. Joint Committee, op. cit. 16 Established by the European Union (Scrutiny) Act 2002 (as amended by the European Communities (Amendment) Act 2002. 17 See www.oireachtas.ie (16 December 2005). 18 Article 5. Accession to the European Communities and consequent transfer of competence might have been seen as conflicting with this article. This possibility was removed by the constitutional amendment. 19 Basil Chubb (1974) The Government and Politics of Ireland (Oxford: Oxford Paperbacks), pp.193–4; Michael Gallagher (2005) ‘Parliament’, in John Coakley and Michael Gallagher, Politics in the Republic of Ireland, 4th edn (London and New York: Routledge in association with PSAI Press, 2005) for discussion on opposite models of democracy and relations between parliament and government, and Ireland’s display of both. 20 Article 16 of the Bunreacht provides for the method of voting, the minimum number of members per constituency, as well as for a relationship between numbers of representatives and constituents to be determined by reference to the last census. This can lead to boundary changes and to changes in numbers within one constituency, thus leading to dissatisfaction within political parties. In multi-seat constituencies would-be representatives are competing not only with other political parties, but also with members of their own parties. This could be seen as a deterrent to being involved in low profile committee activities. 21 For an explanation of the electoral system see i.a. Richard Sinnott (2005) ‘The rules of the electoral game’, in Coakley and Gallagher, op. cit., pp. 105–34. 22 All-Party Oireachtas Committee on the Constitution, Seanad Éireann, Second Progress Report, April 1997, pp. 8–9. 23 It is inaccurate to say that ‘the former Joint Committee has been replaced by a select committee

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32 33 34 35 36 37 38 39 40 41 42

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Patricia Conlan (i.e. it consists solely of TDs, with no senators) for (sic) European Affairs’: Brigid Laffan and Ben Tonra (2005) ‘Europe and the international dimension’, Coakley and Gallagher, op. cit., p. 455. It is also inaccurate to describe the post-Nice parliamentary scrutiny link as ‘the Joint Oireachtas Committee for (sic) European Affairs, now called the Select Committee for (sic) European Affairs’, Brigid Laffan (2005) ‘The impact of Nice on public administration’, in Michael Holmes (ed.), Ireland and the European Union: Nice, Enlargement and the Future of Europe (Manchester: Manchester University Press), p. 185. Chubb, op. cit., pp. 70–1. Peter Mair and Liam Weeks (2005) ‘The party system’, in Coakley and Gallagher, op. cit., pp. 135–59. See i.a. archives.tcm.ie/businesspost/2001/06/24/story265720928.asp for reports on comments by the Attorney General Michael McDowell, Minister of State Éamon Ó Cuív and Minister Síle de Valera (24 November 2005). See too Brigid Laffan (2005) ‘Ireland’s management of EU business: the impact of Nice’, in Holmes, op. cit., p. 183, where the stances of these latter two (cousins) are described. Also. op. cit., p. 188, where it is reported that Minister Ó Cuív ‘voted against the Nice Treaty because of directives such as the habitats directive that threatened the rural way of life according to the minister’. This underlines the local nature of political ‘debate’. Minister Ó Cuív represents a constituency in the West of Ireland, a rural community with small farmers and fishermen. See i.a. www.forumoneurope.ie (24 November 2005) for contributions. The National Forum on Europe was set up in the wake of the defeat of the first referendum on the Treaty of Nice. It continues to contribute to raising awareness of developments on the broad European Union stage. Chubb, op. cit., p. 177, comments on the lack of strong parliamentary committee system with powerful chairmen or rapporteurs. There has been considerable change in the intervening period. Gallagher, op. cit., p. 230. European Communities (Amendment) Act 1973, section 1(1), amending the European Communities Act 1972, section 4. See i.a. O’Halpin, op. cit., and Gallagher, op. cit., p. 232 for an overview of some of the difficulties associated with the committee system. These include i.a. lack of resources available to committees, trying to find a quorum, the view of the government towards a probing, trenchant committee system, and the need to ‘mind’ the constituency – all of relevance to our topic. Gallagher, op. cit., pp. 230–1. Ibid. The other is the Joint Committee on Social and Family Affairs, whose current chair, Willie Penrose, TD, is a member of the Labour Party; see www.oireachtas.ie. (17 October 2005). www.oireachtas.ie. See below. Article 29.4.3 (1972 – later amended – see below). See i.a. John Temple Lang (1972) ‘Legal and constitutional implications for Ireland of adherence to the EEC Treaty’, 9 CML Rev 167. Article 15.2.1 of the Constitution. For further examples relating to delegated legislation, see below. See i.a. Crotty v An Taoiseach [1987] IR 713. See too Hogan and Whyte, op. cit., p. 515ff. for review of leading applicable cases. Now article 29.4.4. Article 29.4.10 extends constitutional protection to laws enacted, acts done, or measures adopted by the State which are necessitated by the obligations of the European Union and Communities – thus not just of the Communities, as originally. Now articles 29.4.6 and 29.4.8. Articles 1.11, 2.5 and 2.15 of the Treaty of Amsterdam, as well as the second and fourth Protocols, and articles 1.6, 1.9, 1.11, 1.12, 1.13 and 2.1 of the Treaty of Nice. EU Division Department of Foreign Affairs Oireachtas scrutiny of EU business, Guidelines for Departments , March 2003, pp. 5–6. See White Paper on the Treaty of Nice . Available at: www.foreignaffairs.gov.ie (21 December 2005). Sections 1 and 2.

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48 Regulations being directly applicable in their entirety and directives being binding as to their result, but form and method of transposition being a matter for each member state. 49 Section 3(1). 50 See i.a. Meagher v Minister for Agriculture [1994] IR 329 and Maher v Minister for Agriculture and Food [2001] 2 IR. 51 See Gallagher op. cit., pp. 218–19 for comment on lack of scrutiny of statutory instruments, as well as their usage for implementing European directives instead of Acts of the Oireachtas, not least given the ‘sheer number’ thereof. 52 See i.a. Meagher v Minister for Agriculture [1994] IR 329 and Vincent Browne v Attorney General and others: www.bailii.org/ie/caseslIESC/2003/43.html (21 December 2005). 53 See Denham J in Browne. Compare the same judge’s views in Meagher. 54 See i.a. Meagher, Maher and Browne. 55 Hogan and Whyte, op. cit., pp. 526ff. 56 For a critical view of the Meagher judgment and parliamentary scrutiny of legislation see i.a. Gerard Hogan (1994), ‘The implementation of European Union Law in Ireland: the Meagher case and the democratic deficit’, Irish Journal of European Law, 2: 190. 57 Denham J in Meagher, p. 139, cited by Hogan and Whyte, op. cit., p. 526, n. 142. 58 See i.a. Denham J in Meagher and Browne. 59 Article 249 European Community Treaty refers to the direct applicability of regulations. The European Court of Justice’s jurisprudence on direct effect should not be forgotten, as well as its jurisprudence on the sui generis nature of the legal order created by the Communities’ treaties. 60 See Hogan and Whyte, op. cit., p. 525, n. 140. 61 Robinson, op. cit., p. 13. 62 European Communities (Confirmation of Regulations) Act 1973. Some of the instruments being transposed had not been translated into English – see Mary T. W. Robinson (1979) ‘Irish parliamentary scrutiny of European Community legislation’, 16 CML Rev 16, pp. 9–40. 63 Section 1(1). 64 See i.a. Robinson (1979). 65 Laffan and Tonra, op. cit., pp. 454–5, sketch the background to the changing committee role. 66 Section 6(1). 67 Section 5(1): ‘Without prejudice to the future exercise of the powers conferred by Section 3 of the Act of 1972, all regulations made under Section 3 of the Act of 1972 prior to the passing of this Act are hereby confirmed as and from the date upon which they purported to come into operation.’ Subsections (2) and (3) deal with the constitutionality of such regulations and subsection (5) deals with any amendments made to regulations made. 68 Meagher. 69 Subsection 5(4). 70 Formerly called parliamentary secretaries, see Chubb, op. cit., p. 170. 71 Gay Mitchell, TD (now also MEP), had been Minister of State in the Department of Foreign Affairs – effectively Minister for Europe – and became the first chairman of the reformed Joint Committee on European Affairs and its Sub-Committee on Scrutiny established in July 2002 and given statutory effect in October. His ministerial background equipped him particularly well to discharge his role as chairman, in an informed manner He was elected to the European Parliament in the 2004 European Parliament elections, and has opted to concentrate on his European Parliament mandate rather than to stand for the Dáil in the 2007 next general election. 72 Laffan, op. cit., p. 185. 73 Gallagher, op. cit., p. 226. 74 Dáil Debates 21, 22 and 27 June 2001, www.oireachtas.ie (20 December 2005). 75 Gallagher, op. cit., p. 227. For a more dated, and critical evaluation of this role see Chubb, op. cit., pp. 195–204, in particular the role of committees, pp. 197–9. 76 Chubb, op. cit., p. 195. 77 See i.a. Annual Report of the Houses of the Oireachtas Commission 1 January 2004 to 31 December 2004, Dublin, Stationery Office; and Houses of the Oireachtas Commission Strategic Plan 2005–2006, Dublin, Stationery Office.

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78 Lisa Hegarty (Parliamentary Legal Adviser) (2003) The Role of the European Committee in the National Parliaments after Accession –The Example of Ireland, Prague 8–9 September, Taiex Seminar on Parliaments and Accession to the EU. 79 Regulations and directives adopted under the European Community Treaty, joint actions and common positions adopted under articles 14 and 15 of the Treaty on European Union and ‘measures requiring the prior approval of both Houses of the Oireachtas pursuant to article 29.4.6 of the Constitution not otherwise mentioned in this definition’. Decision (article 249 EC T) is not included – a change from the Labour Party’s Bill. However, as we shall see, the combination of the Orders of Reference and the flexibility of the (amended) Guidelines issued by the EU Division of the Department of Foreign Affairs now allow for this earlier omission to be addressed. 80 Section 2(1). 81 Subsection 2(3). 82 Section 3. 83 See Joint Committee: available at www.oireachtas.ie (20 December 2005). 84 See Meagher, Maher, Browne for example. 85 Point 8, p. 2. Unfortunately these are not to hand at the time of completion of this contribution (December 2005). 86 EU Division, ‘Guidelines’, March 2003. 87 European Union (Scrutiny) Act 2002, section 3. See too Joint Committee, ‘First Report’, p. 3. 88 Sub-Committee on Scrutiny, ‘Minutes of Meeting of Thursday 2 October 2003’. 89 See i.a. Irish Times, 6, 24, 26 and 27 November 2003. 90 See i.a. Irish Times 14 November and 24 December 2003. 91 Joint Committee, ‘First Report’, p. 4. 92 Sub-Committee, op. cit., p. 1. 93 Section 2(3). 94 Second Annual Report, p. 13. 95 Second Annual Report, p. 33. The improvements arising from these changes were acknowledged in Joint Committee, ‘Third Annual Report’, pp. 15–16. 96 EU Division, op. cit., p. 3; Government decision of 10 December 2002 (Annex 4 – Guidelines), . 97 Joint Committee, ‘First Annual Report’, ‘Minutes of meeting of Thursday 10 October 2002’, point 3’, http://www.oireachtas.ie – Committees. 98 Joint Committee, ‘First Report’, p. 5. 99 Sub-Committee, op. cit., p. 4. 100 EU Division, op. cit., p. 6. 101 These have included seeking support for the disabled; for neglected inner-city areas, with all attendant social and economic ills; retention of local hospitals; continuing free access to television signals or as a response to not being chosen to stand on a party ticket. 102 Michael Gallagher and Lee Komito (2005) ‘The constituency role of Dáil deputies’, in Coakley and Gallagher, op. cit., p. 232. 103 For example, a respected campaigner for the rights of the disabled sought election to the European Parliament in 2004, and was successful. She had stood for election to the Dáil and the Seanad in 2002, on the same issues, but lost narrowly. 104 See n. 26 regarding Minister Ó Cuív. The Habitats Directive, or rather its implementation in Ireland, featured strongly among the issues raised in public sessions of the National Forum on Europe: www.forumoneurope.ie (17 October 2005). 105 Laffan and Tonra, op. cit., pp. 453–4. 106 Laffan, op. cit. (‘The impact…’), p. 184. 107 See John O’Brennan (2004) ‘Ireland’s National Forum on Europe: élite deliberation meets popular participation’, Journal of European Integration, S, 2: 167–82. 108 See i.a. Crotty. 109 Denham J, in Meagher, p. 367. 110 There is some indication of confusion regarding the distinction to be made between regulations and directives under article 249 ECT – particularly as regards their application (transposition) in the domestic legal system – see i.a. Denham J, in Browne, p. 26.

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111 See i.a. Meagher, Maher, Browne. 112 European Communities Acts, 1972–1973. 113 European Communities (Confirmation) Act 1973. See too European Communities (Amendment) Act 1995, section 5(1) which incorporates confirmation of measures in addition to other tasks. 114 Robinson, op. cit. 115 Robinson, op. cit. 116 See i.a. Joint Committee, ‘Report of the Joint Committee on European Affairs, Review of EU (sic) Legislation’, March 2000, para. 1.1. 117 See i.a. Joint Committee, ‘Minutes of Meeting of Wednesday, 20th June 2001’, para. 5. 118 See i.a. Joint Committee, op. cit., para. 3. 119 Joint Committee, ‘Minutes of Meeting of Wednesday, 18 July, 2001’, para. 3(a). 120 Sub-Committee, op. cit., p. 20. 121 For a more recent contribution on the importance of the resourcing issue see, National Forum on Europe, Chairman’s Report, ‘The Fifth Phase of Work of the National Forum on Europe on the European Constitution July 2004 to June 2005’, p. 30, para. 92, where this author’s submission is recorded. 122 Robinson, op. cit. 123 Joint Committee, ‘Second Report’, p. 13 (2004) and ‘Third Report’, pp. 15–16 (2005). 124 Ibid., pp. 33–4. 125 ‘Second Report’, pp 33–4; ‘Third Report’, p. 6. 126 The Sub-Committee met 18 times in 2004 and 17 times in 2005 and scrutinized respectively 569 and 440 measures and other documents. 127 ‘Second’ p. 5 and ‘Third’ p. 6 Reports. 128 Department of Foreign Affairs, The European Constitution White Paper June 2005, launched 13 October 2005, as reported in the Irish Times: ‘Approach of Irish Government: the Government strongly supported strengthening the role of national parliaments in the Union. Its representative coauthored a very early submission to the Convention highlighting the importance of the principle of subsidiarity. It welcomed the Convention’s proposals in this area without reservation’; p. 37, www.irlgov.ie – Foreign Affairs Department (17 October 2005). 129 Conference of Community and European Affairs Committees of Parliaments of the European Union, Secretariat, presented to XXXII COSAC 17–18 May 2005, p. 81. 130 I am grateful to the Clerk of the Sub-Committee for this information.

Part III

National parliaments in the new member states

11 The Polish parliament and EU affairs An effective actor or an accidental hero? Adam ˜azowski Introduction This contribution is tailored to provide readers with an overview of the state of affairs regarding parliamentary control of European affairs in Poland, one of the new member states of the European Union (EU). In the course of the last two decades, the role of the Polish parliament has changed dramatically. From a communist democratic façade it has developed into a full fledged legislator.1 Since the early 1990s it has become involved in EU matters in a variety of ways. Membership in the EU has required far reaching modifications in its relations with the government. These developments are discussed at some length in this contribution to the volume. The chapter begins with a presentation of basic facts about the Polish parliament. The evolution of its involvement in EU affairs in the period preceding the EU accession is analysed in the next section. This leads to an overview of the existing legal framework and recent jurisprudence of the Polish Constitutional Tribunal relating to that framework. The final part of the chapter attempts to answer the question set forth in the title, whether the Polish parliament with respect to EU-related matters is an effective actor or just an accidental hero. Although it may be a bit premature to formulate a definite answer to this question, an evaluation of parliamentary activities demonstrates certain tendencies that allow some preliminary conclusions. It is argued that the existing legal framework gives the parliament a relatively strong position vis-à-vis the government. This is strengthened further by political realities, where all governments since the fall of communism have been based on weak and unstable coalitions. Since accession to the Union, Poland has been governed by two minority cabinets. This fact in itself has made them vulnerable to political pressures from the parliament. This extends to both the domestic and international arenas and influences actions undertaken at the EU level. The experience so far proves that in most cases parliamentary involvement is undermined by populist argumentation reflecting limited expertise and understanding of EU-related issues. To this end it is argued that, despite its capacity and advantageous legal framework, the Polish parliament is more an accidental hero than an effective actor in EU matters.

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The Polish parliament Poland has a bicameral parliament consisting of a lower chamber called the Sejm and an upper chamber called the Senat.2 Both are based in Warsaw. The Sejm is composed of 460 deputies elected in universal, equal, direct and proportional elections conducted by secret ballot. The Senat is composed of 100 senators elected in general elections (also by secret ballot), which are also universal and direct.3 Elections to both chambers take place simultaneously every four years. The terms of both chambers are interlinked. Any shortening of the term of the Sejm, whether on its own motion or based on a decision of the President of the Republic, results ex lege in the shortening of the Senat’s term. The candidates for deputy and senatorial positions are nominated by political parties or groups of voters.4 No one can perform the functions of a deputy and a senator simultaneously. Moreover, the positions may not be held jointly with official posts listed exhaustively in Article 103 of the Polish Constitution.5 Both chambers conduct debates in full plenary sessions, but important debates take place also in permanent and ad hoc standing committees. At the time of writing this chapter there are 25 standing committees in the Sejm and 14 in the Senat. Among them there are separate standing committees for European affairs and for international affairs. The powers of the parliament are specified in the Polish Constitution of 1997 and in a set of standing orders, which are separate for each chamber.6 Both the Sejm and the Senat are vested with legislative powers on the basis of Article 95.1 of the constitution.7 Moreover, the lower chamber has certain powers to control the activities of the government (formally referred to as the Council of Ministers).8 The latter factor raised some controversies in both political and academic circles when the time came to adopt legislation defining the relationship between the parliament and the government in EU affairs.

The parliament’s role in European affairs before EU membership From the early years following the fall of communism the Polish parliament has been engaged in EU-related matters. The intensity and degree of its involvement varied according to developments in Polish–EU relations. Not surprisingly an initial focus was on the negotiation and conclusion of the Europe Agreement.9 As the bilateral relationship developed, and the prospect of membership in the EU emerged, the parliament became involved in approximating Polish law with the acquis communautaire. Although it was not directly engaged in the accession negotiations, it closely followed the decisions of Polish governments. Debates on the progress towards accession became a common feature of political life and parliamentary agendas. With the conclusion of the Accession Treaty,10 parliament played a major role in its ratification and subsequently in the appointment of observers and the first Polish Members of the European Parliament (MEP). Representatives of both chambers participated also in the activities of the European

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Convention, which prepared the first draft of the Treaty establishing a Constitution for Europe. It is worth taking a closer look at some of those early activities, as they played a pivotal role in shaping the parliament’s position in the post-enlargement era. The starting point for consideration here is the involvement of the parliament in the process of approximation of Polish laws with EU law. Internally, two main actors were involved in this complex and time consuming exercise – the Polish government and the parliament. The government was mainly responsible for preparation of approximation bills and adoption of executive legislation, while the parliament served as the vehicle for adoption of acts transposing EU legislation.11 Approximation of national laws with the acquis communautuire was a conditio sine qua non for EU membership. Technically it was the most difficult of the Copenhagen membership criteria.12 Formally this obligation had only a limited legal basis, as the only legally binding provision to approximate was a best endeavours clause set forth in Article 68 of the Europe Agreement.13 This was reinterpreted taking into account the application for membership. The reinterpretation was discussed in the legal literature of that time and the arguments were echoed in the political practice of the late 1990s.14 In the end, it was an unprecedented and complex exercise that coincided with a dramatic economic and legal transformation in Poland. It also required an immense effort and very often amounted to the creation of certain branches of law from scratch. Because of constitutional constraints most EU legislation had to be transposed by means of acts of parliament.15 Surprisingly the Sejm and the Senat only amended their respective standing orders in 2000 in order to add EU-orientated scrutiny to the existing legislative procedures. Those amendments followed a well justified critique from the European Commission. In fact, the considerable backlog in transposition exacerbated the pace of pre-accession efforts and was a threat to Poland’s membership in the first wave of the so-called ‘big bang’ enlargement. This was partly due to a lack of political pressure but partly also indirectly connected with a lack of scrutiny in the parliament regarding consistency with the acquis. Until the above change in the standing orders, scrutiny was conducted only at the early governmental stages of the procedure. This meant that roughly 50 per cent of proposals originating from authorities or sources other than government were not scrutinized at all.16 Moreover, because of a lack of relevant procedures there was no scrutiny of governmental bills during the final stages of the decisionmaking procedure. Following the revision of the standing orders, a new system was introduced. One of its key features was a special parliamentary European Legislation Committee and a fast-track procedure for handling EU-related bills.17 This, together with La Pergola-style18 horizontal acts of parliament allowed Poland to catch up with its transposition obligations in a relatively short period. The outstanding problem was not only the quality of some of this legislation but also the reduced role of the parliament in its enactment. The pressures of the very tight approximation schedule and pending accession negotiations served at times to force the parliament to act as a ‘law creation machine’. Bearing this in mind it is worth mentioning that at the beginning of 2000 the Sejm adopted a resolution on

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preparations for membership. It urged the government to give the approximation effort priority.19 In the year 2000–1 the parliament adopted 121 acts transposing EU legislation. In the following term (2001–5) this number grew to 158 pieces of legislation.20 This legislation ranged from consumer credits, to public procurement, and to free movement of persons. At this stage neither the parliament nor the government was in any way involved in EU decision-making.21 Notwithstanding all these challenges and shortcomings the parliament played a pivotal role in the approximation of Polish law with the acquis communautaire. This procedural framework has also served as a basis for testing the capacity for coping with the burdens of EU membership and requirements connected with a timely transposition of EU legislation. Parliamentary activities connected with EU-related matters were not limited to approximation of laws. On the contrary, the Sejm used its controlling powers vis-àvis government to scrutinize a wide range of actions of the latter undertaken in the course of the accession negotiations. In the final years before membership, this coincided with the negotiation of the Treaty of Nice,22 as well as the subsequent European Convention and Intergovernmental Conference (IGC) that led to the Constitution for Europe. In order to strengthen political pressure on the government the Sejm adopted several resolutions. For instance in December 2002, shortly before the completion of the accession negotiations, the Sejm had stood for tough negotiations on the financial package in general and Common Agricultural Policy (CAP) subsidies in particular.23 It was argued that the compromise suggested by the EU was not sufficient from a Polish perspective.24 Moreover, it was the Sejm that encouraged the government to oppose any attempts to revise the Council voting system that had been agreed in Nice.25 To this end the Sejm adopted two separate resolutions. In the first one the Sejm concluded that the ambitious aims of the Convention were met.26 It was argued that the future EU Constitution would be a strong foundation for an EU based on respect for fundamental rights.27 The Sejm also presented a very strong stand for a ‘one Commissioner per member state’ rule and on the voting system in the Council. It was explicitly stated that it expected a tough position from the government, suggesting that the government should use the right of veto if necessary.28 The last argument was repeated in the next resolution adopted on the eve of the critical European Council in Brussels in December 2003.29 Interestingly enough, a similar resolution was adopted by the Senat on 19 September 2003. 30 In the course of the decade preceding EU membership deputies of the Polish parliament became acquainted with the European Parliament (EP) in various institutional frameworks. First of all there was the Association Parliamentary Committee31 based on Article 108 of the Europe Agreement.32 Its powers were political in nature and it was potentially an effective framework for enhanced political cooperation between Polish MPs and the EP.33 The frequency of its meetings varied from one in 1997 to three in the following year. Whether its capacity was used during its twenty meetings is a different matter.34 Using hindsight, one might argue that its role was overshadowed by political developments connected with Poland’s impending EU accession.

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Following the European Council in Laeken, the European Convention was convened.35 It was agreed that the candidate countries would be represented equally with the current member states but without the right to a veto. Poland was represented by a representative of the government as well as two representatives of the parliament (one from the Sejm and one from the Senat).36 The Convention itself was a useful exercise, but the Polish representatives did not manage to play a considerable role.37 The role of national parliaments in the following IGC was fairly limited; however, as noted above, both the Sejm and the Senat used this opportunity to present their views on the developing EU Constitution. Another chapter opened with the signature of the Accession Treaty. In the period preceding its entry into force national parliaments of the acceding countries were allowed to post observers to the EP in numbers equal to the number of seats available following their accession.38 This was a first taste of what awaited after membership had been attained and did not go without difficulties on either side. At the EU level the entire procedure was not very formalized. The starting point was an invitation sent to national parliaments and the appointment of observers. The observers were allowed to participate in plenary sessions as well as in meetings of the EP’s committees. The observers were neither allowed to make interventions nor to vote in the plenary sessions. In committees they had a right to present opinions; however, they had no voting rights.39 Already at that time certain pressures within the Polish parliament became visible. This was especially the case with Eurosceptic parties, whose level of expertise in EU matters was overshadowed by speculative assumptions and a simple lack of basic knowledge about how the EU worked.40 Polish representatives were recruited mainly from the European Standing Committee in the Sejm and its equivalent in the Senat. It is argued in the academic literature that in certain cases appointments were not expertise-driven but rather were a ‘sort of reward’ for leaders of the political parties.41 Following accession and before the elections to the EP the national parliaments of the new member states appointed the first MEPs from those countries.42 Thus, the Polish parliament became involved in EU affairs long before the country’s EU membership. Since the early 1990s its role has evolved, and shortly ahead of the accession, alongside the government, it was the leading actor, particularly when it came to approximation of laws. The latter put the legislature in a rather peculiar position. Despite being formally the main legislative authority of the land its work remained heavily dominated by the approximation efforts in a context where there was great pressure to fulfil the membership criteria and limited parliamentary discretion in law making. Because of those pressures, the parliament almost served as a law-making device with a relatively limited space for its own contribution. Also, various EU activities and projects were open to Polish MPs facilitating their gradual involvement in EU decision-making. As set forth above, the practical results of these exercises are debatable. At the same time preaccession efforts provided a very good testing ground for the emerging system of coordination with respect to EU policy. 43

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The parliament’s role in EU affairs after the accession Accession to the EU required the re-arrangement of numerous national procedures, within both parliaments and governments of the new member states.44 It also required a re-definition of the bilateral relationship in EU matters between legislatures and executives. Poland was no exception.45 Since there were no relevant provisions in the Polish constitution, the parliament made a decision to fill the legal vacuum. Thus, shortly before accession the parliament adopted, on its own initiative, an Act on Cooperation between the Polish Council of Ministers and the Parliament in EU Matters (hereinafter referred to as the Act).46 It was followed by revisions to standing orders of both chambers.47 These moves were preceded by intensive political and academic debate on the appropriate cooperation model.48 It was necessary to strike a balance between the ambitions of the parliament and the fairly tight institutional framework envisaged by the national constitution. The key issues were not only to determine what powers should be granted to the parliament but also the division between the powers of the two chambers themselves. The debate was based on Article 95 of the Polish Constitution, which, as set forth above, provides the lower chamber with legislative and control powers. The Senat, on the other hand, is confined to exercising only legislative powers. Eventually this asymmetry of powers between the two chambers was reflected in the Act, giving the Sejm a far more privileged position than the Senat. This was later determined by the Constitutional Tribunal to be contrary to the Polish Constitution. The judgment itself and its follow-up are thoroughly discussed in the fifth section of this chapter. At this stage it is enough to note that the judgement forced amendments to the original framework and an empowerment of the Senat. The Act puts the parliament in a relatively strong position vis-à-vis the government in EU matters.49 It is not comparable to the strong Danish model, but it does equip both chambers of the parliament with a variety of tools to control and scrutinize the actions of the executive.50 The areas of cooperation are divided into three categories: 1 2 3

cooperation on the creation of EU law, cooperation on the adoption of Polish law implementing EU legislation, cooperation in appointments for certain positions in the EU institutions.

The Act creates for the government a general obligation to cooperate with the Sejm and the Senat in EU matters. At least every six months the government must present both chambers with reports on Polish participation in the activities of the European Union. It must present a report on any EU-related matter at the request of either of the chambers or parliamentary committees responsible for EU matters. When it comes to pending EU proposals, the government has an obligation to provide both chambers of the parliament with: 1

consultation documents (i.e. Commission White and Green Papers, Communications, legislative plans),

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proposals for legislation, proposals for international agreements, proposals for decisions of the governments meeting collectively in the Council, soft law proposals.51

Moreover, the government has an obligation to inform the Sejm and the Senat about the work plans of the Council the Commission as well as evaluations of the annual legislative plans prepared by the EP and the Council.52 The Act sets forth rules on continuous scrutiny of proposals for EU legislation and decisions of the government in this respect. At the very early stage of an EU decision-making procedure, the government not only has an obligation to present proposals for EU legislation but also drafts of its position. Drafts must be accompanied by impact assessment reports and information on the EU decision-making procedure as well as voting requirements in the Council. The internal bodies of the Sejm and the Senat have a right to present their opinions on proposals within 21 days. Failure to provide an opinion is considered to represent tacit approval.53 Article 8 of the Act imposes an obligation on the government to present both chambers with information on the decision-making developments and positions of the Polish government in relation to particular pieces of legislation. Again, relevant internal bodies in both chambers of the parliament are empowered to present their opinions within 21 days. Finally, before meetings of the Council, the government must request the opinion of the relevant bodies in the Sejm and in the Senat as well as present the draft final position that the government is planning to take.54 Such information shall be accompanied by regulatory impact assessment papers. It was argued by the Constitutional Tribunal that only proposed positions of the Polish government fall under the scrutiny rubric at this stage of the procedure. Such a conclusion is based on the fact that proposals for legislation as such are scrutinized beforehand. Article 9.3 of the Act provides for an important exception in this respect. The government is freed from the above obligation when the pace of EU decision-making procedure so requires. However, in such cases a detailed report on the final decision must be submitted shortly afterwards. This exception does not apply to EU legal acts which require unanimity or have considerable economic consequences. Following the 2005 amendment of the Act, the government also has an obligation to present the relevant bodies in both chambers with reports on meetings of the Council and decisions taken. An important rule is contained in Article 10 of the Act. Opinions of the relevant Sejm committees shall form a basis for governmental decisions. To this end they are not binding; however, they cannot be completely ignored. If the government does not take a particular opinion into account, the reasons for this must be immediately explained to the Sejm. Apart from scrutiny of EU legislation and governmental decisions taken at the European level, the parliament is also heavily involved in transposition of EU law to the Polish legal order. Procedures and institutional arrangements differ from those used in the pre-accession period.55 The general system is however the same.

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The government has the responsibility for preparation of bills transposing EU law. They are later debated and adopted by the Sejm and the Senat.56 Based on Article 11.1 of the Act the government has an obligation to submit all EU-related bills not later than three months before the end of the transposition period. If the latter is longer than six months the government shall present relevant bills at least five months earlier. Those obligations can be relaxed in special cases. The relevant Sejm internal bodies also are empowered to present their opinions on candidates for selected posts in the EU institutions.57 As demonstrated by the nomination of Danuta Hübner for membership in the European Commission this may lead to heated plenary debates. The debate which took place in early 2004 proved that numerous MPs (especially those representing right-wing parties) had only a very limited understanding of the functions and powers of the Commission. For example, it was argued from several quarters that, as a Polish representative, she would not be able to sufficiently protect Polish interests in the European Union. Procedural means available in the Act are not the only framework in which the parliament is engaged in EU matters. The others are less institutionalized; nevertheless they have considerable political importance and potential implications. Debates on EU-related issues held in both chambers are definitely one of them. Following the work of the European Convention and subsequent recommendations from the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC), the parliaments of the member states organize debates on the Commission’s legislative programmes. Such a debate, on the Commission Programme for 2006, took place in the Sejm on 16 December 2005.58 Reading the minutes shows that the discussion was far from superficial, and it was used by some deputies as an opportunity to present their Eurosceptical concerns, concerns not particularly related to the document at hand.59 In the Senat there is also a new tradition of holding biannual debates on governmental reports on Poland’s EU membership. Apart from such EU-orientated debates, the ordinary question time sessions with members of the government serve as an excellent opportunity for scrutiny of EU matters and allow the Sejm to influence governmental decisions. This is potentially a very strong tool bearing in mind the political culture in Poland and the confirmed practice of coalition or minority governments. Resolutions of the parliament are another important instrument. When it comes to EU matters they have been part of the political life of the assembly for several years now. As explained above they had served as a powerful device for scrutiny of accession issues and EU Constitution negotiations. Following accession the resolutions have been used to influence governmental decisions on current EU matters. A recent example is the resolution of 27 January 2006 on CAP.60 The Sejm called upon the Polish government immediately to open negotiations with the Commission for an increase of milk quotas for Poland. It was argued that the milk quotas not used by the other member states should be allocated to Poland and CAP subsidies should be paid accordingly. The parliament is also engaged in a variety of multilateral frameworks of interparliamentary cooperation. Notwithstanding COSAC it has engaged in closer cooperation with the assemblies of the three Baltic States (Estonia, Lithuania and

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Latvia) as well as the parliaments of the Visegràd Countries (Poland, the Czech Republic, Slovakia and Hungary). With regard to the former, the Committees of European Affairs started holding regular meetings (ahead of COSAC meetings) in 2005. At Birštonas on 13 September 2005 they adopted a number of political documents including a Resolution on the EU Financial Perspective for 2007–13, a Resolution on the situation in Belarus, and a Decision regarding Ukraine.61 The Visegràd cooperation involves meetings of the speakers of the parliaments as well as gatherings of the parliamentary EU committees. The last meeting of the latter led to the adoption of a statement dealing with the EU Financial Perspective for 2007–13, free movement of workers, the EU Constitution, and the future of Visegràd cooperation.62 Although those decisions are general in nature, nevertheless they may indirectly influence governments. They also clearly show areas which are of interest to the respective national parliaments (including the Polish parliament).

Parliamentary committees and EU matters Having outlined the role of the parliament in EU matters it is worth taking a closer look at the internal organization of parliamentary work. The allocation of tasks among parliamentary committees in the Sejm and the Senat has changed appreciably in the wake of EU accession. As already indicated, in February and in April 2004 the Sejm and the Senat (respectively) had revised their standing orders to take into account the forthcoming accession to the Union. This reshaping of the internal organization of both chambers has been far from cosmetic. On the contrary, it has affected the parliamentary procedures to a considerable extent. In the Sejm the EU Affairs Committee is composed of a maximum 46 members, proportionally representing political parties and factions in the Sejm. Its powers are specified in Annex II to the Standing Orders. They include all matters related to the membership of the European Union. This particularly extends to:

• • • • • •

presentation of opinions on pending proposals for EU legislation, international treaties to which the European Community (EC), the EU or its member states are envisaged to be a party to; work plans of the Council; annual legislative plans of the Commission; adoption of recommendations for the government for EU-related negotiations (meetings of the Council); discussions on reports presented by the government; adoption of opinions on candidates for posts in the EU institutions.

It is interesting to note that the EU Affairs Committee is not directly involved in legislative work on bills implementing EU law (primarily EC Directives). Such bills, declared to be EU-related by the government or the speaker of the Sejm, have their first readings in sectoral committees of the Sejm. This constitutes a major difference to the pre-accession system, where approximation bills had been read in the

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EU Committee of the Sejm.63 It seems to be a fairly justified development, bearing in mind the rationale for the latter arrangement. It had been tailored to speed up Polish approximation activity and to reduce the pressing backlog in the transposition of EU legislation. Maintaining the status quo upon accession was not appropriate as it would have led to a high concentration of pending bills in one committee only. EU-related bills are adopted in the ordinary legislative procedure, with some variations stemming from chapter 5a of the Standing Orders.64 The special rules allow for faster procedures and the limitation of the right to submit amendments. EU membership has also led to repositioning of the re-branded EU Committee into the main body engaged in scrutiny of current EU issues and governmental decisions in EU matters. It is the EU Affairs Committee that is deeply involved in the procedures established by the Act. As its practice since accession proves, it is engaged in the almost weekly grilling of governmental representatives. Since the start of the term of the current Sejm, it has held 30 meetings, discussing the full range of pending proposals for EU legislation. For example, during its 22nd meeting on 27 April 27 2006 a legislation package on EU funds was discussed with representatives of the government.65 When it comes to the Senate the separate EU Committee is composed of 11 members. Its tasks are specified in Articles 67a–d of the Standing Orders. It is empowered to handle EU-related matters, in particular to adopt opinions on

• • •

proposals for EU legislation; positions of the government taken during the EU decision-making process; positions of the government to be presented at meetings of the Council.

It may request the government to present information on matters related to EU membership during sessions of the Senat. Similarly to the Sejm, the EU Committee is no longer the central internal body dealing with bills aimed at implementation of EU law. Following enlargement the sectoral committees operating in the Senat have that particular task. To this end the role of the EU Committee is primarily orientated towards scrutiny of pending proposals for EU legislation and governmental decisions in EU matters. Equally to its equivalent in the Sejm, it is involved in procedures set forth in the Act.

The judgement of the Constitutional Tribunal As mentioned above, there is a pivotal difference between the powers of the two chambers of the Polish parliament. Article 95.1 of the Polish constitution vests the Sejm and the Senat with legislative competences. However, only the Sejm is equipped with the authority to control the government and adopt motions of censure relating to particular ministers or the entire college. This difference played a central role in the dispute about the powers of the chambers vis-à-vis the government in EU affairs. The provision at stake was Article 9 of the Act. According to its original text, the government had the obligation to present its

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position before Council meetings only to the Sejm. Already at the drafting stage an argument was raised that such an arrangement would be in breach of the Polish constitution as it limits the powers of the Senat considerably. To this end the Senat had itself amended the provision in question, but its original wording was reinstated by the Sejm during the final stages of the legislative procedure. Shortly after entry into force of this legislation a group of senators requested from the Constitutional Tribunal adjudication on the conformity of Article 9 of the Act with Articles 10.2 and 95.1 of the Polish constitution.66 In their complaint the applicants submitted several arguments. The first was based on a transfer of powers to the EU upon accession. The senators argued that since the competences had been transferred, the national legislature in toto should be given the right to participate in the creation of EU law. Moreover, examples from selected member states showed that participation of both chambers of national parliaments should not, as such, be excluded. The next argument related to inconsistencies in the Act and the position of the Sejm in the course of the parliamentary process leading to its adoption. As already stated, the amendment to Article 9.1 proposed by the Senat was eventually rejected by the lower chamber. It was argued that opinions based on Article 9.1 of the Act are prepared by the Sejm acting in its controlling capacity, hence excluding the Senat. At the same time, however, the upper chamber remained fully involved in the preliminary procedure based on Article 6 of the Act. Summing up, the senators claimed that the procedure in question was legislative in nature, therefore both chambers of the parliament should be equally involved. In the course of the procedure, interventions were submitted by the Chief Public Prosecutor and the speaker of the Sejm. The latter argued that the contested provision was in conformity with the constitution, mainly because the participation of national parliaments has more to do with the controlling of governments than with law-making itself. Articles 3–8 give both chambers access to information on various activities connected with development of EU law. At the same time it required the government to seek from the Sejm opinions on its positions regarding proposals for EU legislation. It was argued that the latter factor determines the exercise of the control function by the Sejm. The Constitutional Tribunal began its analysis with Articles 6 and 9. The judges correctly concluded that the provisions in question were not sufficiently clear. Having highlighted the legal problem at issue, the judges turned on to a more general discussion about the role of national parliaments in the EU and different cooperation models established in the member states (including Germany and the United Kingdom). The Constitutional Tribunal made what for many was a salient point in arguing that the lack of constitutional provisions regulating the relationship between the legislature and the executive in EU matters may be compensated for by a creative and pro-European interpretation of the Polish constitution. Such an interpretation ‘ensures that the influence of Polish State organs (including Parliament) on the adoption of EU law is incorporated into the existing framework of the Polish system of government’.67 At the same time the Constitutional Tribunal noted that the legislature should consider revising

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the Polish Constitution in order to take into account the new legal environment in which Polish authorities are operating after accession.68 The Tribunal noted that one of the pivotal consequences of membership has been the transfer of legislative powers to the Union. This requires modifications to national law-making arrangements. There was a need to strike a balance between the loss of powers on the one hand, and the position of the bicameral parliament as the legislator on the other. This, according to the Constitutional Tribunal, justifies the argument that under these new circumstances both chambers of the parliament shall be empowered to influence EU decision-making to the furthest extent possible. Since some EU legal acts are directly applicable and some become part of the Polish legal system upon transposition, opinions of the parliament amount to participation in the EU lawmaking procedure. This not only allows the legislature to influence future EU legislation but also leads to a reduction of the EU’s democratic deficit. Such reasoning led the Constitutional Tribunal to the conclusion that activities regulated in Articles 6 and 9 of the Act fell within the area of legislative competences, hence the contested provisions were contrary to Article 95 of the Polish constitution.69 It is worth adding that three judges submitted dissenting opinions. The judgement required revision of the Act, but the Constitutional Tribunal made it clear that there were are no legal obstacles for the government to start presenting both chambers with its positions regarding EU legislation immediately. All the necessary amendments to the Act were adopted later in 2005 and entered into force shortly afterwards.70

Conclusions As argued at the start of this chapter the Polish parliament has evolved in the last seventeen years from a communist democratic façade into a fully fledged bicameral legislature. During that time it has played a pivotal role in the development of Polish law and the transposition of the acquis communautaire into the national legal system. Following accession to the EU, the role of the parliament has changed considerably. This of course is not a phenomenon unique to Poland. To the contrary, the reality is that national parliaments of all member states are faced with the same issue. Formally speaking, membership resulted in a transfer of certain sovereign powers to the EU and by the same token limitation of the powers of national authorities, including legislatures. This supports a well established argument that national parliaments are the main losers in the European integration process. Although formally such a conclusion is justified it does not fully reflect the reality in the new member states. As noted above they were heavily involved in the approximation of national laws. In Poland most of the approximation bills originated in government and were passed in a fast-track legislative procedure limiting in practice the role of the legislature. All of this was conducted under the pressure of accession negotiations and a very tight approximation schedule limited the role of the Polish parliament. Bearing this in mind it may be argued that although formally the powers of the parliament have been reduced following the accession, paradoxically the parliament has benefited from membership.

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The Act adopted shortly before 1 May 2004 has guaranteed parliamentary involvement in decision-making in EU matters. It has secured institutional devices allowing the Sejm and the Senat to control actions of the government. Together with political realities discussed above they make the parliament potentially a strong player. The parliament has definite opportunities and tools to be a conscious actor in EU affairs. The experiences so far have unfortunately proved that some of its chances have been wasted by the realities of everyday parliamentary work and fairly limited expertise and understanding of EU matters among deputies and senators. Unfortunately, this makes the Polish parliament more of an accidental hero than the effective actor that it has a real chance to be.

Notes 1 One should remember that the Polish parliament has a very long and rocky history. For an overview of Polish history see Norman Davies (2005) God’s Playground: A History of Poland, vols I–II, revd edn (Oxford: Oxford University Press). 2 The latter was re-established in 1989 on the basis of Round Table agreements concluded between the Communist regime and the democratic opposition. 3 Articles 96–7 of the Polish Constitution. The Constitution of the Republic of Poland of 2 April 1997 [Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 roku] Dziennik Ustaw [1997] No. 78, Item 483 (hereinafter referred to as Constitution). An English translation of the Constitution is available in Albert Pol and Wojciech Odrow·ü-Sypniewski (eds) (2000) Polish Constitutional Law: The Constitution and Selected Statutory Materials, 2nd edn, (Warsaw: Chancellery of the Sejm), pp. 25–91. All of the quotes from the constitution inserted throughout this contribution originate from this book unless stated otherwise. 4 In order to be eligible for election to the Sejm candidates must have the right to vote and be at least 21 years of age. In case of the Senat the age threshold is 30 years. Simultaneous candidacy to both chambers is prohibited by Article 100.2 of the constitution. 5 This includes inter alia the President of National Bank of Poland, the President of the Supreme Chamber of Control, the Commissioner for Citizens’ Rights, and others. 6 UchwaÓa Sejmu Rzeczypospolitej Polskiej z dnia 30 lipca 1992 r. Regulamin Sejmu Rzeczypospolitej Polskiej [Resolution of the Sejm of 30 July 1992. Standing Orders of the Sejm], Monitor Polski No. 23/2002 item 398 (as amended); UchwaÓa Senatu Rzeczypospolitej Polskiej z dnia 23 listopada 1990 r. Regulamin Senatu [Resolution of the Senate of 23 November 1990. Standing Orders of the Senat], Monitor Polski No. 54/2002, item 741 (as amended). 7 In accordance with the principle of separation of powers enshrined in Article 10 of the Polish constitution. 8 Not to be confused with the EU’s Council of Ministers. 9 The Europe Agreement establishing an association between the European Communities and their member states, of the one part, and the Republic of Poland, of the other part, OJ 1993 L 348/2. 10 Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Slovak Republic, concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic

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Adam ˜azowski of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union, OJ 2003 L 236/17. See Adam ˜azowski (2001) Adaptation of the Polish Legal System to European Union Law: Selected Aspects, SEI Working Paper, No. 45 (University of Sussex: Sussex European Institute). See Christophe Hillion (2004) ‘The Copenhagen criteria and their progeny’, in Christophe Hillion (ed.), EU Enlargement: A Legal Approach (Oxford and Portland, OR: Hart Publishing); Marise Cremona (2001) ‘Accession to the European Union: membership conditionality and accession criteria’, XXV Polish Yearbook of International Law: 219–40; Frank Hoffmeister (2002) ‘Changing requirements for membership’, in Andrea Ott and Kirstyn Inglis (eds), Handbook on European Enlargement: A Commentary on the Enlargement Process (The Hague: TMC Asser Press), p. 90. Adam ˜azowski (2002) ‘Approximation of laws’, in Ott and Inglis, loc. cit., p. 631, n. 14. Eugeniusz Piontek (1997) ‘Central and eastern European countries in preparation for membership in the European Union: a Polish perspective’, Yearbook of Polish European Studies, 1: 73. The exhaustive list of sources of law in Poland is provided in Article 87 of the Polish constitution, and includes the Constitution itself, ratified international treaties, acts of parliament and regulations. Acts adopted by municipal authorities within their powers are also sources of law in Poland. See Adam ˜azowski (2002) ‘Poland’, in Ott and Inglis, loc. cit., p. 299, n. 14. In Poland the right to submit bills belongs to deputies of the Sejm; the Senat; the President of the Republic; the government and a group of at least 100,000 citizens (see Article 118 of the Polish constitution). For a detailed account see Adam ˜azowski, loc. cit., p. 15, n. 13. See also Marzena Laskowska (2001) ‘The Parliamentary European Legislation Committee in the Approximation of Laws Procedure’, Polish Yearbook of International Law, 25: 57. On La Pergola law, see the chapter by José Magone in this volume. UchwaÓa Sejmu Rzeczypospolitej Polskiej z dnia 18 lutego 2000 r. w sprawie przygotowaÕ do czÓonkostwa Rzeczypospolitej w Unii Europejskiej [Resolution of the Sejm of the Republic of Poland of 18 February 2000 on Preparations for Membership in the European Union], Monitor Polski No. 6/2000 Item 124. This includes approximation acts only and does not extend to legislation adopted upon accession. This led to an argument that the process in question was a ‘voluntary harmonisation’. See Andrew Evans (1997) ‘Voluntary harmonization in integration between the European Community and Eastern Europe’, European Law Review, 22: 201. Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and Certain Related Acts, OJ 2001 C 80/1. UchwaÓa Sejmu Rzeczypospolitej Polskiej z dnia 5 grudnia 2002 r. w sprawie integracji Polski z Uni· Europejsk· [Resolution of the Sejm of the Republic of Poland of 5 December 2002 on integration of Poland with the European Union], Monitor Polski No. 59/2002, item 798. It is worth taking a closer look at the language used by the Sejm. It talks about the EU proposal, while technically speaking the negotiations were taking place between the existing member states and the future member state within a framework of a bilateral ‘Conference for accession to the European Union’. See also Cezary BanasiÕski (2001) ‘The negotiations decision-making machinery’, Polish Yearbook of International Law, 25: 69; Leopold Maurer (2002) ‘Negotiations in progress’, in Ott and Inglis, loc. cit., p. 113, n. 14. It was one of the MPs at the time who coined the infamous ‘Nice or Death’ slogan. UchwaÓa Sejmu Rzeczypospolitej Polskiej z dnia 2 paz´dziernika 2003 r. w sprawie Traktatu ustanawiaj·cego KonstytucjÄ dla Europy [Resolution of the Sejm of the Republic of Poland of 2 October 2003 on the Treaty establishing a Constitution for Europe], Monitor Polski No. 47/ 2003, item 694.. The Sejm concluded that the achievements of the Convention included confirmation of the aims and values which are at the heart of the European integration process, insertion of the Charter of Fundamental Rights, a clear division of powers between the EU and the member states, simplification of secondary legislation and increased transparency of the EU. It also supported the increase of powers of the EP and envisaged deeper involvement of the national parliaments in EU decision-making. At the same time the Sejm raised a number of critical points and it made it clear

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that appropriate action from the government was expected. These included the lack of a reference to Christian values in the Preamble, and the lack of confirmation that NATO serves as the guarantor of security in Europe. Also, the Sejm argued that the new member states should be granted a special state aid status as regions that have suffered an economic disaster as a result of decades rule by communist regime. This eventually happened when Poland and Spain blocked the negotiations. See Conclusions of the Presidency, Brussels European Council, 12–13 December 2003, Council Doc. No 5381/04. UchwaÓa Sejmu Rzeczypospolitej Polskiej z dnia 11 grudnia 2003 r. w sprawie traktatu ustanawiaj·cego KonstytucjÄ dla Europy [Resolution of the Sejm of the Republic of Poland of 11 December 2003 on the Treaty establishing a Constitution for Europe], Monitor Polski No. 58/ 2003, item 901. UchwaÓ a Senatu Rzeczypospolitej Polskiej z dnia 19 wrzeínia 2003 r. w sprawie projektu Traktatu ustanawiaj·cego KonstytucjÄ dla Europy [Resolution of the Senat of the Republic of Poland of 19 September 2003 on the draft Treaty establishing a Constitution for Europe], Monitor Polski No. 45/2003, item 664. It was officially called the EU–Poland Joint Parliamentary Committee. Such an institution was common for all Europe Agreements. See Andrew Evans (2002) ‘Institutions’, in Ott and Inglis, loc. cit., p. 1043, n. 14. It was preceded by the creation of contact groups in the Polish parliament as well as in the EP. For example it was empowered to ask for information regarding implementation of the Europe Agreement from the Association Council – its main decision-making body. It also had the right to present the latter with recommendations. See for instance Declaration and Recommendations, EU–Poland Joint Parliamentary Committee, 15th Meeting, Warsaw, 5–6 March 2001, the text of which is available in Yearbook of Polish European Studies 5, 2001: 201; Declaration and Recommendations, EU–Poland Joint Parliamentary Committee, 16th Meeting, Brussels, 3–4 December 2001, text of which is available in Yearbook of Polish European Studies, 5, 2001: 211. For an academic appraisal see Jan Borkowski (1999) ‘The role of the Poland–EU Joint Parliamentary Committee in Poland’s preparations for European Union membership’, Yearbook of Polish European Studies, 3: 63. European Council meeting in Laeken, Presidency Conclusions, Council Doc. No. 00300/1/01. Each representative had an alternate. Interestingly enough the representative of Polish government was Danuta Hübner, future member of the Commission. In the case of Poland the number was 54. See Jan Borkowski and Andrzej Grzyb (2004) ‘The role of observers in the European Parliament in the process of institutionalization of Poland’s membership in the EU’, Yearbook of Polish European Studies, 8: 103. On the development of Polish Euroscepticism see Aleks Szczerbiak (2002) ‘After the election, nearing the endgame: the Polish Euro-debate in the run up to the 2003 EU Accession Referendum’, SEI Working Paper No. 53 (University of Sussex: Sussex European Institute). Borkowski and Grzyb, op. cit., p. 108, n. 40. The first session of the enlarged EP took place on 3–5 May 2004. This was shortly followed by the first direct elections to the EP in Poland. To some surprise only a handful of the Polish observers were elected. Adam ˜azowski (2003) ‘Polska w okresie miÄdzy podpisaniem Traktatu Akcesyjnego, a jego wejíciem w üycie – wybrane zagadnienia’, in StanisÓaw Biernat, SÓawomir Dudzik and Monika Niedü wiedü (eds), Przyst·pienie Polski do Unii Europejskiej. Traktat akcesyjny i jego skutki (Kraków: Zakamycze). See Marian Grzybowski (2005) ‘Rada Ministrów i administracja rz·dowa a czÓonkostwo Polski w Unii Europejskiej (wybrane zagadnienia konstytucyjne’, Przegl·d Sejmowy, 3: 9. See Alfred Kellermann, Jeno Czuczai, Steven Blockmans, Anneli Albi, and Wybe Douma (eds) (2006) The Impact of EU Accession on the Legal Orders of New EU Member States and (Pre-)Candidate Countries: Hopes and Fears (The Hague: TMC Asser Press); Philipp Kiiver (2005) ‘The National Parliaments in an enlarged Europe and the Constitutional Treaty’, in Kirstyn Inglis and Andrea Ott

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51 52 53 54 55 56 57

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Adam ˜azowski (eds), The Constitution for Europe and an Enlarging Union: Unity in Diversity? (Groningen: Europa Law Publishing), p. 87. Ustawa z dnia 11 marca 2004 r. o wspóÓpracy Rady Ministrów z Sejmem i Senatem w sprawach zwi·zanych z czÓonkostwem Rzeczypospolitej Polskiej w Unii Europejskiej [Act of 11 March 2004 on cooperation of the Council of Ministers with Sejm and Senate over matters relating to the Poland’s membership in the European Union] Dziennik Ustaw No. 52/2004 Item 515. An English translation of the Act is available in Yearbook of Polish European Studies, 8, 2004: 199. UchwaÓa Sejmu Rzeczypospolitej Polskiej z dnia 20 lutego 2004 r. o zmianie Regulaminu Sejmu Rzeczypospolitej Polskiej [Resolution of the Sejm amending its Standing Orders], Monitor Polski No. 12/2004 Item 182; UchwaÓaa Senatu Rzeczypospolitej Polskiej z dnia 22 kwietnia 2004 r. w sprawie zmiany Regulaminu Senatu [Resolution of the Sejm amending its Standing Orders], Monitor Polski No. 18/2004 Item 302. See inter alia Wojciech Sokolewicz (2005) ‘Formy oddziaÓ ywania polskiego parlamentu na prawodawstwo Unii Europejskiej. Wybrane problemy prawne’, in Maria Kruk and Jan Wawrzyniak (eds), Polska w Unii Europejskiej (Kraków: Zakamycze), p. 67; Jan Barcz (2004) ‘Wyzwania stoj·ce przed Sejmem Rzeczypospolitej Polskiej w zwi·zku z czÓ onkostwem Polski w Unii Europejskiej’, Przegl·d Sejmowy, 2: 61; PaweÓ Sarnecki (2004) ‘WspÓ praca Rady Ministrów z Sejmem i Senatem przy wykonywaniu przez PolskÄ praw czÓ onkowskich w Unii Europejskiej,’ Przegl·d Sejmowy, 5: 9. For an overview of the Act see StanisÓ aw Biernat (2006) ‘Poland’, in Kellermann et al., loc. cit., n. 45, pp. 419, 430. On the relevance of the Danish model for the new member states see Antoaneta Dimitrova and Ellen Mastenbroek, ‘Involving parliament in EU affairs: the usefulness of the Danish model for the new member states’, paper available at unpan1.un.org/intradoc/groups/public/documents/ NISPAcee/UNPAN022164.pdf See Articles 4, 6, 7 of the Act. Article 5 of the Act. Article 6.5 of the Act. Inclusion of the Senat follows the 2005 amendment to the Act that followed the judgement of the Constitutional Tribunal discussed in this chapter. Marzena Laskowska (2005) ‘Parlamentarne procedury postÄpowania z projektami us taw wykonuj ·cych prawo Unii Europejskiej’, Kruk and Wawrzyniak, loc. cit., p. 141, n. 47. Details of legislative procedures in both chambers of the parliament are thoroughly regulated by standing orders of the Sejm and the Senat. The list in Article 12 of the Act includes: members of the European Commission and Court of Auditors, judges at the Court of First Instance and European Court of Justice, advocates general, members of the Economic and Social Committee, members of the Committee of Regions, directors in the European Investment Bank and the member of Coreper. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Unlocking Europe’s full potential. Commission Legislative and Work Programme 2006, COM 2005 (531) final. Minutes of the debate are available in Polish at the official website of the Sejm at ks.sejm.gov.pl:8009/ kad5/005/50053000.htm#070 UchwaÓa Sejmu Rzeczypospolitej Polskiej z dnia 27 stycznia 2006 r wzywaj ·ca RadÄ Ministrów do przyst·pienia w trybie pilnym do negocjacji z Komisj· Europejsk· w sprawie zwiÄkszenia kwoty mlecznej dla Polski [Resolution of the Sejm of 27 January 2006 calling the Council of Ministers to Initiate Urgent Negotiations with the European Commission on the Increase of Milk Quotas for Poland], Monitor Polski No 9/2006, item 116. The texts are available in English at libr.sejm.gov.pl/oide/index.php?topic= international&id= nadbaltyckie_spotkanie_2 The text is available in English at libr.sejm.gov.pl/oide/international/wyszehrad3_conclusions.pdf For details, see Marzena Laskowska, loc. cit., n. 54 at pp. 141–61. This part of the Standing Orders is devoted to the procedure with EU-related bills.

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65 Kancelaria Sejmu, Biuro Informacyjne, Biuletyn z posiedzenia Komisji ds Spraw Unii Europejskiej, No. 598/V kad. 66 Judgement of 12 January 2005 in the case K 24/04 [Wyrok z dnia 12 stycznia 2005 r. Sygn. akt K 24/04], OTK Z.U. [Constitutional Tribunal Reports] 2005/1.A, item 3. A summary of the judgement in English is available at the official website of the Constitutional Tribunal at www.trybunal.gov.pl/eng/Summaries/documents/K_24_04_GB.pdf. All of the quotes from the judgement inserted throughout this contribution originate from this document. 67 Pt. 2 of the summary. 68 A revision of the Polish Constitution shall take place within coming years in order to take into account the judgment of the Constitutional Tribunal on the European Arrest Warrant. See Adam ˜azowski (2005) ‘Constitutional Tribunal on the surrender of Polish citizens under the European Arrest Warrant. Decision of 27 April 2005’, European Constitutional Law Review, 1, 3: 569. 69 The judges held that ‘As long as the constitutional legislator wishes to maintain a bi-cameral Parliament, both chambers should be guaranteed equal participation in activities concerning the shaping of Poland’s position in the field of adopting EU law’ (Pt. 5 of the summary). 70 Ustawa z dnia 28 lipca 2005 r. o zmianie ustawy o wspóÓpracy Rady Ministrów z Sejmem i Senatem w sprawach zwi·zanych z czÓonkostwem Rzeczypospolitej Polskiej w Unii Europejskiej [The Act of 28 July 2005 amending the Act on cooperation of the Council of Minister with Sejm and Senate over matters relating to the Poland’s membership in the European Union] Dziennik Ustaw No. 160/2005 item 1342. 51

12 The role of the Hungarian National Assembly in EU policy-making after accession to the Union A mute witness or a true controller?

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Eniko´´ Gyo´´ri For a country that regained its sovereignty after 45 years of communist dictatorship, an important question should be how to preserve sovereignty in the future, not least when that country decides to join a new political and economic grouping. The use of the conditional tense here is deliberate: in Hungary, as in other new European Union (EU) member states, there is general support for EU membership, though meaningful discussion of the sovereignty dilemma has hardly ever taken place. It is against this background that arrangements have been put in place in the Hungarian National Assembly for the oversight and scrutiny of executive action in EU policy-making. This chapter examines the parliament’s involvement in EU matters before accession and the constitutional requirement for cross-party consensus on sovereignty issues that led to a medium-strong legal norm being adopted for overseeing EU affairs after accession. Hungary’s choice of model of parliamentary control over EU affairs emerged not only from its own political traditions but also owes something to the practices in some of the old (EU15) member states. However, as this chapter will show, it is the domestic political situation in Hungary that appears to be having most impact in determining whether the National Assembly is a mute witness or a true controller in EU matters.

Factors influencing Hungary’s choice of model When evaluating the Hungarian model of parliamentary control over EU affairs, one has to consider Hungary’s constitutional and political structure, its political culture and constitutional traditions, the National Assembly’s powers in the national institutional context, the role parliament has been playing so far in integration matters and also the popularity and importance of EU issues in the country. The constitutional and the political context In Hungary a parliamentary system has evolved since 1990 that we may call limited parliamentarism along the lines of the majority of Western European democracies. The oversized, unicameral National Assembly – having 386 deputies

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for a country of 10 million people – has already lost some of its power as a result of the chancellery-type government structure that has emerged. The Hungarian electoral system is a combination of the majoritarian principle and proportionality. One hundred and seventy-six MPs are elected in individual constituencies and 210 on the basis of party lists. The territorial lists and the national list have a corrective effect in producing a more proportional electoral result, giving disproportionately more seats to the bigger parties.2 This distortion effect provides the opportunity for bigger parties to form solid and stable governments. Because of this, all Hungarian governments since 1990 have managed to complete their four-year mandate, even when electoral victories were very narrow. Hungary is a consensual democracy (governing by coalitions) – where the institutional structure and the division of power functions via competing elite strategies.3 There are two main political blocks, a centre-left and a centre-right, with a seemingly insurmountable gap between them. The formation of mass parties is ongoing on both sides.4 In Hungary a multidimensional political culture has evolved, fragmented along three major cleavages – religious versus atheist, communist nomenklatura versus those who were never part of it, and urban versus rural.5 Political culture is characterized by very strong and permanent clashes between the ruling coalition and its opposition on – almost exclusively6 – domestic issues. Public trust in political institutions – as in other Central and Eastern European Countries (CEEC) – eroded very quickly following the transition.7 People are increasingly discontent with the whole political elite, and they identify the National Assembly with endless political squabbling and the pursuit of parties’ own vested interests. The National Assembly is a unicameral parliament and is generally acknowledged to exert medium-strong political influence. Although it concentrates mostly on legislation and works like a law-factory, its activities are not limited to endorsing the government’s proposals via the voting-machine of the governing parties’ parliamentary majority. Its members, the ever growing number of standing and ad hoc committees, the opposition and the governing parties’ parliamentary groups play a significant role on complementing, amending and influencing policies. Consequently, there are important guarantees for the protection of a range of interests.8 The Hungarian constitution9 provides the parliamentary committees with important competencies. They may initiate legislation, are free to investigate any matter, and anyone called has to appear in front of these bodies. Committees therefore play a major role in the workings of the National Assembly, although not to the same extent as in the United States for example. As is increasingly the case in modern parliamentary systems, a growing number of tasks are being transferred to the committees in order to relieve the plenary session of its obligations. Since 1990 the parliament’s Standing Orders have been the subject of many modifications with a good number of amendments helping over time to strengthen this process and increasing the amount of legislative work carried out in committees. Using Lijphardt and Laprat’s terminology, 10 the National Assembly can be described as a typical working

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parliament, which – theoretically – could even substitute government proposals. Therefore, on paper it can be considered a strong, policy-making parliament. However, taking into account the present political context (a body whose proceedings are largely dictated by the government’s majority), it is more justifiable to call it a medium-strong, policy-influencing parliament. Summing up, on the eve of accession to the EU, the Hungarian parliament was thus a mediumstrong, overburdened and unpopular institution, where political debates mostly focused on domestic political issues and ‘Europe’ did not feature prominently in public debate. EU matters in the National Assembly before accession to the EU11 The National Assembly established its Committee on European Community Affairs (between 1994 and 2004 the Committee on European Integration Affairs, hereafter the Committee) as early as 1992,12 so as an institution it had been dealing with EU matters for more than a decade prior to accession. The government had to present a report annually on Hungary’s integration policy to the legislature , and in April 1994 it presented Hungary’s application for accession to the Union after being authorized to do so by the parliament. In addition, since 1994 an obligation has been in place regarding the approximation of Hungarian legal norms to EU standards. Consequently, the parliament initially played a relatively strong role in European affairs. However, in the course of 1998 first the Socialists, and, after the change of government, the centre-right Fidesz, impeded the parliament passing a resolution on the accession negotiations and on the legislature’s role in this process. As a result, the accession negotiations started and continued without any specific parliamentary authorization or mandate. As in other countries, the dividing line on parliament’s role is more between the government and the opposition of the day rather than between political parties. Not surprisingly, MPs’ loyalty to the government is stronger than their commitment to enhancing parliament’s role in European affairs. Thus, the Committee on European Integration Affairs started to behave in a rather reactive way during the accession negotiations. It only received ex post, though regular, information from the foreign minister; ex ante consultations – except for the sporadic six-party negotiations (there were two consensus-based documents prepared) – did not take place.13 Parliament never seriously questioned the necessity of or opposed the transposition of EU legislation into Hungarian law (the adoption of the acquis communautaire). Consequently, the accession period was dominated by governmental activity with minimal parliamentary participation.14 Meaningful exchange of opinion among the political players was party-based, i.e. it took place outside the legislature. In addition, the Committee’s three-weekly meetings schedule limited the frequency of government reports on EU developments and hence had a detrimental effect on parliamentary monitoring of integration issues. After the change of government in 2002, the Committee’s influence was further

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reduced15 with the result that parliamentary control had even less impact in the final and most crucial stages of the accession negotiations. In 2002 the Socialist Party, which won the elections that year, decided to establish another parliamentary organ for EU matters, the so-called Grand Committee, under the chairmanship of the speaker of the House. Its members were the political groups’ leaders and the chairs of the committees for foreign, EU and constitutional affairs. The foreign minister and the prime minister were permanent participants of this body, which met monthly as a forum for consultation on questions relating to Hungary’s accession to the EU. Meetings were held in camera. At the constituent session a political declaration was adopted on the need for parties to cooperate on working out the necessary constitutional amendments required by Hungary’s membership of the EU,16 and for accession to be decided by a popular referendum. These cross-party talks were held outside the legislature, but on the instruction of the Grand Committee. Surprisingly, during the last phase of these talks, and after the conclusion of the Copenhagen Agreement, no meeting of the Grand Committee was convened by the speaker. In February 2003, however, a declaration was adopted by the Grand Committee that all the four parliamentary parties would support EU membership during Hungary’s EU referendum campaign. In March 2003 parties agreed in the body that the government should be authorized by a resolution of the National Assembly to sign the accession treaty in light of the outcome of the referendum.17 After the signing of the Accession Treaty in April 2003, the body lost its impact and visibility, and its mandate expired when Hungary joined the EU. The Grand Committee’s balance sheet is, thus, mixed. It acted as an effective forum for making political compromises, when the government needed the consensus of the opposition.Meanwhile, when the opposition was interested in discussing an issue in this body, the speaker simply did not convene it. The Copenhagen Agreement was evaluated only by the Committee on European Integration Affairs, i.e. at a much lower level. By establishing the Grand Committee, attention was largely diverted from the Committee on European Integration Affairs, and the division of labour between the two organs was not made clear. It happened that the same ministers were summoned in parallel by the two bodies on the same subject. Political agreements were, however, always reached in the Grand Committee.18 In May 2003, eight members (including the chair) from the 21-member Committee for European Integration Affairs were appointed to be observers in the European Parliament (EP);,19 consequently the body’s work became irregular (it was increasingly difficult to hold meetings), and the Committee could only monitor the final stage of accession to a limited degree. More generally, EU affairs have often seemed somewhat isolated in the National Assembly. In the 1990s the members of the Committee on European Integration Affairs used to have almost a monopoly of information on EU affairs. In 1997 this should have changed, as all parliamentary committees were invited by the speaker to establish integration subcommittees, but many of them have existed only on paper.20 Until December 2005, parliament had held seven political debates on European affairs, which, in general, made little political

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impact. The existence of the Grand Committee generated more high-level discussion on EU matters in the legislature (though those were held behind closed doors), but it did not contribute to increasing the EU-knowledge of average MPs. As a result, the Union is not yet present in the everyday life of the National Assembly and, although the representatives frequently refer to it during the debates, in-depth discussions are rather the exception. Among the members of the National Assembly, those who can speak foreign languages and have expertise in EU matters are still in the minority. The ‘Eurocapacity’21 of Hungarian MPs, therefore, is rather low. The renewal rate of members of the Committee on European Integration Affairs was high after each election (in 1994: 93 per cent, in 1998: 69 per cent, in 2002: 62 per cent),22 which may have encouraged general parliamentary stability but nevertheless impeded the accumulation of knowledge on EU matters. In Hungary, similarly to other acceding countries’ parliaments, it has been much more difficult to overcome know-how than institutional deficits, i.e. the lack of professionalism and expertise in the European policy field. The chair of the Committee is a key figure: he sets the agenda of the meetings, thus determines how active the body should be. Normally, the ruling parties choose to hold this position. However, during the 1994–8 parliamentary term the chair was from the opposition (Viktor Orban, president of Fidesz, the major opposition party, who in 1998 became prime minister) and it was during this period that the Committee made the most impact on Hungary’s handling of EU affairs. It is worth mentioning that the international activities of the Committee on European Integration Affairs played an important role in the ‘Europeanization’ of the legislature. By virtue of the Europe Agreement, which established an association between Hungary and the EU and its member states in 1994, institutions of political dialogue were set up. At parliamentary level the EU–Hungary Joint Parliamentary Committee (JPC) was established to provide a forum for discussion between the Hungarian parliament and the EP, considering all aspects of relations between the EU and Hungary. Between 1994 and 2004 this body met twice a year, once at one of the EP’s headquarters (i.e. in Brussels or in Strasbourg) and once in Hungary. Despite the rather ambiguous experiences of the JPC,23 it was an opportunity for the Hungarian MPs involved to make contacts, learn the EP’s working methods and get to know the EU politicians’ way of thinking. The hearings convened by different EP committees on the main aspects of enlargement also provided good training for Hungarian deputies. From 1997 representatives of the Hungarian Committee on European Integration Affairs also regularly attended the meetings of the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC), which, again, were a good occasion to meet partner committees dealing with European affairs in both the EU member states’ parliaments and in the CEEC parliaments. Through these activities Hungarian MPs became familiar with the existing practices of parliamentary control over EU affairs.

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Public awareness of and support for EU membership in Hungary When judging the strength of the Hungarian model, we must also consider that European integration has mostly remained a matter for the elites. The first freely elected prime minister, József Antall highlighted Euro-Atlantic integration as Hungary’s ultimate goal as early as 1990. This was incorporated into the preamble of the so-called Europe Agreement24 as Hungary’s unilateral aspiration, too. It was only in June 1993 at the Copenhagen Summit that EU membership became a common goal for both the Union and Hungary. Hungary’s application for membership was presented in April 1994, negotiations started in March 1998, and were concluded in December 2002. Accession became a reality on 1 May 2004, i.e. fourteen years after the change of regime, after so many ‘ups and downs’. People were initially very enthusiastic about the idea of rejoining the mainstream of the European continent, but due to the protracted length of the process, the euphoria slowly vanished. The lack of detailed information on the membership negotiations led to the widely held conviction that EU accession was a matter for the elites and of little relevance to the ordinary man on the street. The extremely low turnout in the referendum on Hungary’s EU membership on 12 April 2003 (45.6 per cent, the lowest among all acceding countries) clearly demonstrated the failure to mobilize the population and to convince Hungarian citizens that European integration is an issue that affects them. The low turnout also showed that the four-party campaign to raise support for membership between November 2002 and April 2003 failed to achieve its objectives. It has to be noted, however, that 83.8 per cent of those who went to the polls were in favour of accession, which was – together with Malta – the highest figure among the acceding states. Beside the abovementioned four-party campaign, the parties were not greatly helpful in motivating the public to support EU membership. Parliamentary parties in Hungary have been in favour of EU membership in all parliamentary terms since 1990, except between 1998 and 2002, when the rightist MIÉP25 expressed some doubts. However, in September 2000 even this party signed a political declaration, which stated among other things that ‘it is Hungary’s fundamental interest to join the European Union at the earliest possible moment and under the most favourable conditions that can be achieved’.26 Because of this consensus, no competing EUstrategies were devised by the parties. Until 2002 there were only livelier debates on aspects of EU accession during election campaign periods, otherwise work of the Committee on European Integration Affairs was rather calm. Three days after the referendum, on 15 April 2003, the National Assembly, adopting a parliamentary resolution with urgency procedure, authorized the government to sign the Accession Treaty the following day in Athens with 365 votes in favour and 1 against. The Treaty was ratified by the parliament on 17 December 2003 with 323 votes in favour, 12 against and 8 abstentions, while the Act on the Promulgation of the Accession Treaty was approved on 30 April 2004 by 339 votes in favour, 2 votes against and no abstentions.27 Having a medium-

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strong policy-influencing parliament already experienced in integration matters would seem to indicate that close parliamentary involvement in EU matters could be expected after accession. Strong political clashes among the parties would also imply at least some degree of effective control. The strong internal political focus, together with limited knowledge on Union issues and the general support for membership, however, may lead to parliament having a lower impact than expected. The analysis of the variables thus gives a mixed picture. In this respect the legal background for the involvement of the National Assembly in EU matters has to be examined and then contrasted with the practice seen during the first year of membership. It is important to distinguish between de jure and de facto powers of parliament since the latter often falls short of the former.

Legal background to the parliament’s role in EU matters On 17 December 2002, after three months of intensive four-party talks, which were held outside the parliament, the National Assembly, by passing Act LXI of 2002, amended the constitution, thereby creating the constitutional foundations for accession to the Union. This constitutional amendment regulated the issue of transferring sovereignty (Article 1 prescribes a requirement of a two-thirds majority of votes for any kind of sovereignty transfer, and it also defined European unity as its major objective (Article 2). In addition, it made the National Assembly responsible for the creation of a new act to be adopted by a two-thirds majority regulating the parliament’s role following accession (Article 6(2)).28 With regard to the legislature’s post-accession role, the constitution only states that the government has an obligation to provide information to parliament. In other words, the constitution did not specify what the National Assembly’s sphere of authority would be, how it could preserve the powers it already enjoyed such as its legislative power arising from the constitution; how it would control the government, or how it would take part in decision-making on issues of strategic importance for the country. What was clear was that due to the twothirds majority rule, parties would need to somehow reach a common agreement on the matter. The fact that the constitution is very reserved regarding the future role of Hungary’s central democratic institution stems from the political parties’ inability to agree upon these key issues during the discussions preceding the constitutional amendment.29 In February 2003 a team made up of representatives of the government, the National Assembly, the political parties and also some independent experts, started to explore the issue and the positions of the various political actors. By June 2003 a so-called concept was elaborated, which was not based on consensus but served as a starting point for political dialogue. In September 2003, under the umbrella of the Grand Committee, political negotiations were launched, intended to result in a draft act supported by a two-thirds majority as required. It was also intended that this time – as an exception – the National Assembly, rather than the government, should also undertake the related codification work. According to the original idea, the

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work should have finished by December 2003 and the first four months of 2004 should have served as a test period for this new piece of legislation. By November 2004 it became clear that – almost without precedent in Hungarian politics – the real dividing line was between the parliamentary parties and the government. Whereas the four parties’ representatives came close to a final agreement, the government’s representative opposed it. As a consequence, between December 2003 and March 2004, the speaker of the National Assembly did not re-convene the four-party talks. On 18 March 2004 Fidesz, the major opposition party tabled its own draft on the subject. Immediately after that the government tabled its own version and the four-party talks were re-launched on 29 March 2004. After some difficult bargaining, four-party amendments were tabled to the government’s draft and were approved on 10 May by the plenary. Because of this, the final voting on 17 May did not result in any surprises, and the draft law was approved unanimously (299 votes in favour, none against, no abstentions) (Act LIII of 2004). The amendment to the Standing Orders, which makes the new law applicable in the parliamentary routine, was passed on the same day (Parliamentary Resolution 47/2004 (V.18.)) with 298 votes in favour and 1 vote against.30 As a consequence of the lengthy discussion among the parties, the development of the Hungarian model of parliamentary control in EU matters was delayed and was not in place on the day of accession. Therefore – in contrast to the original plans – no time was left for testing the new procedures. The model became fully operational only after the summer parliamentary recess, i.e. in September 2004. The Hungarian model on paper, i.e. according to its legal foundations, is medium-strong, where the National Assembly has the right to information, to consultation and to express an opinion. The government has to base its position to be represented in Brussels on the opinion issued by the parliament. The National Assembly’s standpoint, however, is not legally binding, i.e. government can deviate from it. Should this happen, the government has to report back orally to the Committee on European Integration Affairs, and for issues on which decisions can be taken only by a two-third majority31 there should be a vote on the explanation given by the government in the National Assembly. Similar to the Danish and Finnish models, the Committee is authorized to act on behalf of the plenary session, which makes the parliamentary procedure more effective. Upon the Committee’s invitation, ministers have to appear in front of the body before relevant Council meetings and introduce the government’s position to be presented in Brussels. As the Grand Committee ceased to exist upon accession, before European Council meetings the prime minister has to inform the enlarged meeting of the Committee, which on these occasions is chaired by the speaker of the House. After the European Council Summits, the prime minister must inform the plenary session. The government then has to submit a yearly report to parliament on issues related to Hungary’s EU membership. The Committee may hear the Hungarian nominees proposed by the government for the European Commission, the European Court of Justice, the Court of First Instance, the Court of Auditors and the Board of Directors of the European Investment Bank. The parliament may even

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issue an opinion on the fulfilment of the principle of subsidiarity in the case of EU drafts. In line with Article 134/B of the Standing Orders of the National Assembly, standing committees are deeply involved in the scrutiny process and shall develop an opinion on the EU drafts; however, issuing the parliament’s opinion lies in the exclusive competence of the Committee. Article 134/B (3) provides the right to initiate scrutiny procedure four times per ordinary parliamentary session on a motion coming from only two-fifths of the members of the Committee, which is an important tool in the opposition’s hands.

The experience of the first years of membership in the National Assembly In October 2004 the Committee on European Integration Affairs decided to change its name in order to reflect the fact that Hungary was a member of the European Union and to take a name similar to the other EU bodies of the member states’ parliaments. Since then it has been working as the Committee on European Affairs. It is worth examining the statistical balance sheet of the first year32 and describing some happenings from the third semester,33 when the body was already working on the basis of Act LIII. In one year the Committee met a total of 39 times, i.e. on average once a week, in practice often twice a week and some weeks with no session at all. Meetings on Monday did not last more than an hour, and these meetings were mostly used to discuss issues related to the usual workings of the National Assembly (discussing draft national laws, etc.). The Tuesday morning sessions were, however, longer (2–3 hours) and were mostly dedicated to the scrutiny process. Nine of the 39 meetings were held in camera. Of the 17 times when scrutiny issues were on the agenda, in 14 cases there was a meaningful discussion. Scrutiny was initiated on 16 drafts; in 2 cases the process finished with issuing a Committee opinion, while 14 cases were left pending. There was no clash with the government on EU drafts at all. Coalition parties used their majority to reject proposals coming from the opposition for starting scrutiny in 3 cases, and the opposition used the ‘2/5 rule’ in 2 cases in order to launch the scrutiny process on certain EU drafts. During this first year no EU draft fell under the two-thirds rule. Hearings on the basis of Article 4(3) were convened only once. Nevertheless, ministers and/or state secretaries were invited to address the Committee in 19 cases. The government broke Art. 3(5) in one case, i.e. the government did not wait for the parliament’s opinion before making a decision in Brussels. Art. 9 of the subsidiarity control was used in one case as a test. When analysing the effectiveness of parliamentary control over EU matters, the following have to examined: 1

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scope of information – which EU documents get to parliament, which are subject to scrutiny and what information is made available by the government for the parliament (e.g. if there are explanatory notes); timing – how early a parliament gets involved in the process and how it is timing its procedures;

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the focus of the scrutiny – whether it is a document-based scrutiny or a mandating system; impact of the scrutiny – whether the parliament’s say determines, influences or it has no impact on the stance of the government in a certain issue; monitoring – whether the government is obliged to report back on issues on which scrutiny was initiated; involvement of other parliamentary bodies in EU affairs – whether EU issues remain isolated in parliament or more MPs have access to information and have the right to express an opinion; composition and ‘Eurocapacity’ of the parliament – composition of the EU Committee, knowledge and commitment of MPs vis-à -vis EU issues, staff; reports, nominations, subsidiarity control – whether all this exists only on paper or also in practice.

In the following sections, these criteria are examined on the basis of the relevant legal norms as well as in light of the everyday practice. Scope of information available to parliament According to Article 2 of Act LIII, the government shall send to parliament all EU documents which come on the agenda in the decision-making procedures of the EU institutions, and upon request any further documents. The government also has the obligation to indicate drafts that fall under the legislative authority of parliament, with special emphasis on those, which – by virtue of the constitution or a special act – refer to a subject that is provided for by an act passed by qualified majority. Additionally, the government is supposed to draw parliament’s attention to drafts of extraordinary importance to Hungary. Parliament is entitled to receive included in the government’s position on EU drafts a summary of the contents of the draft (Art. 3), an indication of the EU decision-making process, the expected schedule for the adoption of the draft, the possible starting date of discussion of the draft by the Council, the government’s standpoint itself, the objectives to be achieved, and a presentation of the possible legislative tasks stemming from the EU draft.34 The scope of information given to parliament is thus very wide. It includes all EU legislative proposals and anything requested by parliament. However, parliament has to be aware of the existence of an important EU document not linked to the decision-making process, as there are no guarantees that the government will forward these automatically. In practice, the government does automatically send all public (i.e. not ‘limité’ or confidential) EU drafts35 electronically to parliament, i.e. to the Committee on European Affairs without any selection. This means that the National Assembly is often engulfed by the sheer volume of documentation. At the beginning of each semester, however, the government indicates in a report the drafts relevant from a legislative point of view; additional important, non-legislative EU documents are not mentioned (it is the parliamentary staff that produce a note on those). On the basis of these documents the bureau of the Committee, i.e. the chair and the three

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vice-chairs, try to reach an agreement on which drafts a scrutiny process should be initiated. This ‘bargaining’ is crucial to the work of the Committee; those items on which there is a consensus in the bureau are likely to be placed on the agenda of the Committee’s work. Other documents and issues coming up later are very unlikely to be discussed by the Committee, unless the opposition uses the 2/5 rule fixed in Art. 134/B (3) of the Standing Orders. It has to be noted, however, that the execution of the work programme fixed by the bureau cannot be taken for granted.36 As far as the explanatory notes are concerned, the government duly forwards them to the Committee. Nevertheless, they are of very uneven quality; often they do not contain all the information required by Art. 3. Timing From the point of view of the efficiency of each parliamentary control model, it is crucial for parliament to be involved early in the EU decision-making process and for it to execute its own procedures efficiently. Act LIII does not specify any deadline for forwarding EU drafts to parliament; it only states that the government should do this immediately after a draft becomes available. In practice, for the time being, there has not been any problem with this. Application of Art. 3(5) and Art. 4(1), however, is much more problematic. Officially, the government shall send its proposed position to parliament by a date, which – considering the EU’s agenda for decision-making – enables an in-merit consultation. Similarly, parliament may adopt a standpoint concerning an EU draft within reasonable time, considering the EU’s decision-making agenda. Government and opposition parties have a very different interpretation of what in-merit consultation and reasonable time mean. In practice the government sends its position to parliament only when talks in the different Council bodies are very advanced, i.e. when there is already little chance to influence the outcome. Coalition parties do not urge early involvement either; they strongly oppose putting on the agenda issues that are still in the preliminary working group stage in the Council. This approach thus constitutes one of the main obstacles to effective parliamentary control in Hungary at the moment. Act LIII is reasonable in the sense that if parliament is late in issuing an opinion, the government is allowed to proceed (Art. 4(6)); this provision is flexible enough for the government and gives enough room for manoeuvre. Therefore the tactic of forwarding the government’s position to parliament late in order to slow down the parliamentary procedure to gain more room for manoeuvre, is superfluous. The focus of the scrutiny – document-based or mandating system? In 2005 COSAC produced a report37 in which it divided the existing practices of EU scrutiny into two categories: the first, those legislatures where the emphasis is on the examination of EU documents (like in the United Kingdom and France); the second, those where oral hearings held before the Council meetings are crucial (like in Denmark and Sweden). Act LIII in Hungary, theoretically,

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provides for the possibility of both methods. In practice, Art. 4(3), which stipulates that prior to a Council meeting to decide on the adoption of a certain EU draft, the responsible minister or political state secretary shall appear before parliament at its request and shall expound the position the government intends to represent in Brussels, was applied only twice in the first year and once during the third semester.38 Ministers and state secretaries were regularly invited to the Committee to present their ideas on a certain issue, but the timing of these exchanges of view was hardly ever harmonized with decisive Council meetings. Thus, on paper the model would enable the Hungarian parliament to follow the whole ‘life journey’ of an EU draft from its birth in the Commission until the measure has been adopted in the Council through scrutiny and hearings (just as in the Finnish Eduskunta) but in practice, little happens that makes a real impact. Art. 5, which provides the possibility for the government to revise its previous position on an EU draft and present it to parliament was used only in one case,39 although certain issues were put on the Committee’s agenda several times. Except for this one occasion, therefore, parliament never amended its former standpoint. In sum while on paper the Hungarian model foresees mixed control through the examination of documents and oral hearings, in practice it is mostly a document-based procedure. Impact of parliamentary scrutiny In line with Art. 4(4), the government should base its position to be represented in Brussels on the standpoint of the parliament.40 Originally, the draft of Act LIII, on which there was all-party agreement in November 2003 (and which was not acceptable to the government), used a stronger wording (the government could deviate from the parliament’s opinion exclusively in justified cases). This represents similar wording to the relevant Austrian norm,41 but the government strongly opposed it. The present wording is the result of a difficult compromise. Part (5) of the same Article provoked even fiercer debates. The opposition fervidly argued in favour of a solution according to which the government could not deviate from the parliament’s standpoint if an EU draft covered a subject whose regulation – by virtue of the constitution – required a qualified majority vote in parliament. This means that for issues requiring a two-thirds majority, the National Assembly would issue a binding mandate. The government parties did not agree, and, for the sake of having Art. 8 adopted (see later), the opposition accepted the present wording (the government may deviate from the parliament’s standpoint in justified cases only – see the wording for ordinary legislation, originally supported by all the parties). In practice, until now no EU draft for which the two-thirds rule would have applied has been taken under scrutiny procedure. because of the high tension and mutual lack of confidence among the political players in Hungary, strong embarrassment can be experienced when issuing the Committee’s opinion on the EU drafts (which is a summary by the chair included in the minutes of the Committee meeting).

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Monitoring Art. 6 of Act LIII obliges the government to report back to the Committee on European Affairs in writing on the fate of EU drafts that were scrutinized in parliament. When it deviates from the legislature’s opinion, the government has to justify its standpoint, even by appearing before the Committee. If the divergence concerns a subject whose regulation requires a qualified majority vote, the parliament shall decide on the acceptance of the justification. Art. 134/B. (11) of the Standing Orders provides that the government’s justification shall be given to the Committee. Monitoring is thus regulated in detail in the Act. However, in the first 18 months of the scrutiny process in Hungary, the government reported back only once in writing42 and one minister appeared in front of the body in order to justify the deviation from the parliament’s standpoint.43 Nevertheless, it also has to be admitted that the Committee never insisted on being briefed regularly. The fact that the justification for deviating from parliament’s standpoint can be delivered to the Committee, and that it is not specified in the Act that a vote with a qualified majority should be ordered on the justification, makes the situation quite convenient for the government. Involvement of other parliamentary bodies in EU affairs As already indicated above, before accession EU issues used to be rather isolated in the National Assembly; in the main only members of the former Committee on European Integration Affairs and, later, members of the Grand Committee had access to information and had the opportunity to express an opinion. The introduction of Act LIII has not brought significant change. Art. 7(1) somehow keeps alive the former Grand Committee in the sense that prior to European Council meetings and other events of strategic importance, and on the initiative of the speaker of the House, the prime minister shall inform the speaker, leaders of the political groups, members of the Committee on European Affairs, chairs of the constitutional and foreign affairs committees, as well as parliamentary officials, chairs of standing committees and of the European integration subcommittees of standing committees invited occasionally by the speaker of the position to be represented by the government. Furthermore, according to Art. 7(3), the prime minister shall address the plenary session of the National Assembly in person on the outcome of European Council meetings. In practice, in the course of three parliamentary semesters, during which six such summits took place, the prime minister appeared in front of the enlarged Committee ahead of four of these summits, but set a bad precedent by failing to appear on two occasions. However, he duly reported to the plenary after each European Council meeting, to which all parties could react. EU issues are coming up more and more frequently in ordinary plenary discussions. Tools in the opposition’s hands such as oral and written questions, ‘before agenda’ interventions, interpellations, own-initiated motions are increasingly used to raise EU related subjects (mostly with the aim of criticizing the government’s performance). Holding day-long political debates at the plenary on

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European affairs has already become a tradition; these are often initiated by the opposition.44 In addition, Art. 7(2) of the Act LIII provides that the government shall regularly inform parliament on political events of strategic importance concerning integration. Officially, in line with the respective articles of the Standing Orders, the standing committees are supposed to play a significant role. They hold overall responsibility for the scrutiny process, while the elaboration of parliament’s standpoint concerning the government’s position shall fall under the authority of the Committee on European Affairs (Art. 134/B. (1)). It is the Committee that proposes which committees should be asked for an opinion, and it also indicates a deadline. However, a standing committee may also ask to be nominated to deliver an opinion. In this case, it is obligatory to nominate that committee (Art. 134/B. (1)). When developing its standpoint, the Committee shall take account of the opinions of other standing committees participating in the parliamentary proceedings (Art. 134/B. (7)). Even in the absence of an opinion from a standing committee, the Committee is entitled to adopt a standpoint (Art. 134/B. (9)). It is up to the Committee to decide in how many cases it asks the standing committees for an opinion on a certain EU draft (Art. 134B. (8)). In reality, the standing committees’ role remains very formal. At the beginning – since Art. 134/B. (4) is not clear enough – the chair was against more than one standing committee being asked for an opinion and only decided to change his standpoint after opposition protests. Standing committees lack proper information, expertise and often do not even understand why they should issue a statement on an EU draft and just send the minutes of their respective committee meeting to the Committee on European Affairs. During the first parliamentary year after EU accession when 16 scrutiny procedures were launched, standing committees issued opinions on EU drafts in only six cases. Of these, four were meaningful and two were formal.45 Standing committees thus still need more time to learn their new role. It also has to be admitted, however, that the Committee should learn how to cooperate better with the standing committees and how to make a better use of their opinions. In sum European affairs are still rather isolated in the Hungarian parliament. The Committee on European Affairs, like the EU committees of other member states’ parliaments,46 remains somewhat marginalized in the National Assembly. Composition and ‘Eurocapacity’ of the parliament Hungarian Members of the European Parliament (MEP) are entitled to participate and to intervene at plenary and committee meetings concerning EU affairs,47 but have no right to vote. The dual mandate is specifically excluded.48 The composition of the Committee on European Affairs reflects the proportional strength of the parties in the plenary. In the space of one year there were ten changes in the membership of the 21-member Committee; the lack of continuity in its membership is a clear obstacle to professional work. As to the professional qualifications of MPs, five members pursued post-graduate studies and 13 have a university degree; lawyers are in the majority. Six MPs speak several languages,

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nine know one foreign language, three have a basic knowledge of a language and three do not speak any language other than Hungarian.49 Subjective factors should also be considered. Only the chair and one or two Committee members are well-known politicians. The fact that parties delegate lightweight politicians or beginners to the European Affairs Committee shows that the main political players do not consider this committee important. EU affairs are conceived as something distant from everyday politics, and investing a substantial amount of energy in the committee’s work simply would not pay off as there is no guarantee of high visibility (the media in Hungary show very little interest in EU draft legislation). Members elected in individual constituencies are unlikely to find that their performance in the body affects their re-election chances. These factors hardly encourage a high level of activity much less substantive work. The current chair comes from the smaller coalition party, a fact that has a huge impact on the Committee’s performance. Effective control cannot be achieved without political will, and at present the main motivation of the chair is not to pose any problem to the government. This attitude presents a clear obstacle to efficient parliamentary scrutiny. From the point of view of a parliament’s ‘Eurocapacity,’ the number of qualified staff is important. During the last ten years there was a significant increase in the staff in the Office of the Parliament. In 1992–3 in the whole National Assembly there were only two advisers and a secretary for EU affairs. At the moment the Committee on European Affairs’ secretariat is headed by a chief lawyer, there are five legal advisers, two advisers, a coordinator and two secretaries (altogether 11 people). In the EU Section of the Library six librarians, two researchers and one lawyer work on EU matters, i.e. nine people. In addition, the parliament’s EU Department has six advisers and one secretary. This office delegated one adviser to Brussels to act as a liaison officer with the EP (who is supported by a stagiaire). In total, in the National Assembly 25 university graduates, three secretaries and one stagiaire (almost 30 people) deal with EU affairs in the central office, which – compared to the situation in the other EU 24 legislatures – seems to be a very high figure. It also has to be mentioned that, in line with Art. 10(3) of Act LIII of 2004, the political groups have been provided with financial means in order to employ experts.50 For the time being only the two main parties have made use of this possibility (the Socialist Party has three experts plus one liaison officer with the EP, while Fidesz employs six staff). Therefore, expertise is at the members’ disposal both in the Office of the parliament and in the political groups, and it is up to them whether they want to benefit from this resource. Reports, nominations, subsidiarity control In line with Art. 7(4) of the Act, the government duly tabled its first report in April 2005 on questions concerning Hungary’s EU membership and the status of European integration. The fact that the report was discussed in several committees but was never put on the agenda of the plenary session reflects the low level of interest in EU-related debates in the National Assembly. Art. 8, which provoked one of the more heated debates while being drafted, gives the possibility to the Committee on

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European Affairs to hear the government’s nominees to the EU institutions. Even the standing committees are entitled by Art. 134/C. of the Standing Orders to do so. During the talks on the draft law, the opposition – by making a reference to Art. 23c.(2) of the Austrian Constitution – wanted these hearings to be compulsory, meanwhile the government parties were in favour of optional hearings only. Finally, the opposition accepted the coalition’s wording. The first appointees of the government took office on the day of accession, i.e. on 1 May 2004, when the law was still not adopted, thus it did not apply to them. However, when the Barroso Commission was due to take over in autumn 2004, opposition members insisted that the government’s new nominee for Commissioner, Mr László o Kovács, should be called upon to make an appearance in front of the Committee. In order to avoid any further embarrassment,51 the majority rejected this proposal, and Kovács had an exchange of views with national MPs only after taking office. Given the mutual lack of confidence among Hungary’s political parties, conditionality in the Act’s wording usually results in the minimum application possible. Art. 9 of Act LIII of 2004 introduces subsidiarity control by the National Assembly, thus this concept has already entered into force in Hungary without ratification of the EU Constitutional Treaty by all member states. In line with this, parliament (Art. 134D (1) of the Standing Orders specifies that the Committee on European Affairs) may adopt a position on the operation of the subsidiarity principle concerning EU drafts. Should the Committee presume any breach of this principle, it shall inform the speaker of parliament thereof. The parliament shall then decide on the committee’s motion on this issue within fifteen days (Art. 134D (2)). In practice, during the first 18 months of the scrutiny procedure, these provisions were not employed, except for a test inspired by a joint COSAC decision.52 MPs did not show special interest in the subject and decided that the bureau of the Committee should agree on the procedures to be applied for subsidiarity control. The bureau has yet not put this item on its agenda. In order to have Act LIII of 2004 work properly, the government also had to devise new working procedures. Decree 1007/2004 on the coordination of the EU decision-making process on the governmental side in Hungary was adopted on 12 February 2004, well in time for accession, and well before the law on the parliamentary involvement was ready.53 A governmental crisis54 in summer 2004 delayed the adoption of the draft adjusting the government decree on cooperation between the National Assembly and the government to the new procedures laid down in Act LIII until March 2005. This delay created many uncertainties, especially in the government parties, on the best application of the Act.

Conclusion – de jure strength vis-à-vis de facto weakness The Hungarian parliament started to deal with European integration affairs at an early stage. From 1992 the work was concentrated in a parliamentary committee set up to deal with this issue, which was – together with its Polish equivalent – the earliest

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such body set up in Central and Eastern Europe. This body played an important role in following the implementation of the Europe Agreement and the approximation of Hungarian laws to the EU norms. However, in the crucial phase of the accession talks, its position significantly weakened. The legislature’s involvement was not made clear in the process in advance, and mostly only ex post information was given to parliament on the progress of the negotiations. When Hungary joined the EU on 1 May 2004, the rules for cooperation between government and parliament were not yet in place. Act LIII of 2004 was finally adopted on 17 May 2004; in practice, the Hungarian model for scrutinizing EU matters has been in existence since September 2004. No clear answer can be given on which existing parliamentary control model is closest to the Hungarian one. Experts in the office of the parliament and the political groups studied all the existing scrutiny mechanisms when drafting Act LIII of 2004. In addition, the ‘Copenhagen Parliamentary Guidelines’, adopted by COSAC in 200355 in order to establish minimal standards for parliamentary involvement in EU affairs, had some impact. Certain elements of the Hungarian model resemble parts of some well-known practices of the EU 15, like the light mandating by the German Bundestag or the hearings before nominations in the Austrian National Council. Hungarian legal norms make both document-based scrutiny and mandating through hearings possible, just as in Finland; in practice, however, hearings before the Council meetings hardly ever take place. The amendment of the Hungarian constitution, the adoption of Act LIII and the respective amendment of the Standing Orders required a qualified majority, which obliged the political parties to reach a consensus. That is why on paper the scrutiny system seems to be efficient and provides for the possibility of a mediumstrong control over the government’s EU policy in line with Hungary’s constitutional traditions and political culture. In practice, as the everyday working of the model does not need a two-thirds majority, the real impact of Act’s implementation is less tangible. The gap between formal-legal and actual-political powers is considerable because at present there is no political will in Hungary to have the scrutiny model work properly; it ranks very low on the government’s, parliament’s and the parties’ list of political priorities. De jure strength vis-à-vis de facto weakness is the main characteristic of parliamentary control over EU issues in Hungary. The lack of political will manifest itself in phenomena like the late involvement of the powerful Committee on European Affairs in the EU decision-making process, the inaccessibility of confidential EU documents, the omnipotence of the chair of the Committee, the low ‘Eurocapacity’ and activity of MPs, the rare discussion on EU affairs at the plenary and the inexperience of the standing committees in EU matters. The insurmountable gap and almost total lack of cooperation between government parties and opposition also determine the approach to EU policy; the over-politicized state of domestic politics is thus the main obstacle to effective scrutiny in Hungary. Considering this, a more precise wording of both the relevant Act and the Standing Orders would have been more fortunate. One important guarantee at least for proper democratic scrutiny of Hungary’s EU policy would be for the chair of the Committee on European Affairs to be

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appointed by the opposition. Consensus on EU membership still prevails in Hungary; all parliamentary parties and the majority of the people remain in favour of membership. The level of Euroscepticism is insufficient to generate interest in greater parliamentary control. Parliamentary scrutiny of EU matters is still very much in its infancy in Hungary. Not surprisingly, the Hungarian parliament, like the other new member states’ parliaments, has faced special difficulties as it ‘jumped’ into complex issues, which have been on the agenda of the EU institutions for many years. The early experiences of scrutinizing EU matters during the first 18 months of EU membership have been mixed but overall it can be concluded that the National Assembly’s role has been closer to that of a mute witness than true controller. An improvement in the situation cannot be expected without a significant change of approach to this subject in the domestic political arena.

Notes 1 The contents of the chapter reflect the author’s opinion only, and not necessarily the position of the Hungarian National Assembly. 2 Attila Ágh and Sándor Kurtán (1995) ‘The 1990 and 1994 parliamentary elections in Hungary: continuity and change in the political system’, in Attila Ágh and Sándor Kurtán (eds), The First Parliament (1990–1994) (Budapest: Hungarian Center for Democracy Studies). 3 Andras Körösényi (1998) The Hungarian Political System (Budapest: Osiris), pp. 371–2. 4 In the first freely elected parliament in 1990 there were six parties. The strongest party, Hungarian Democratic Forum (MDF) formed a centre-right coalition with the Christian-democratic People’s Party (KDNP) and the Smallholders’ Party (FKGP), while the second biggest party, the leftist-liberal Alliance of Free Democrats (SZDSZ), the conservative liberal Fidesz and the successor of the former communist party, the Hungarian Socialist Party (MSZP) were in opposition. By the fourth parliamentary term, between 2002 and 2006, this figure was reduced to four (with a ‘big’ MSZP and a ‘small’ SZDSZ in government and a ‘big’ Fidesz and a ‘small’ MDF in opposition). At the April 2006 elections – for the first time after the change in regime – voters confirmed this political scenario by keeping the socialist-liberal coalition in power. The only difference in the composition of the parliament is that the KDNP, which figured on a common list with Fidesz, decided to form its own political group, which is in alliance with Fidesz. In May 2006, thus, a five-party National Assembly started its activities. 5 Körösényi, op. cit., p. 119. 6 In Hungary, foreign policy rarely is debated in public, except for the situation of ethnic Hungarians living outside the state borders, which is a constant source of serious clashes between the left and the right. 7 Gabriella Ilonszki (1998) ‘Parlament az Európai Unióban és Magyarországon’, Politikatudományi Szemle, 1: 73. 8 One-fifth of the MPs are entitled to initiate a political debate at the plenary on a certain subject or are entitled to set up a committee of enquiry. In case one-third of the committee members support a motion, it has to be voted at the plenary. Eniko´´ Gyo´´ri (2004) A nemzeti parlamentek és az Európai Unió (Budapest: Osiris), p. 380. 9 Official translation of the text into English published in the Hungarian Official Journal, 84, 24 August 1990. 10 Arend Lijphardt (1999) Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (New Haven, CT: Yale University Press); and Gerard Laprat (1995) ‘Parliamentary scrutiny of Community legislation: an evolving idea’, in Finn Laursen and Spyros A. Pappas (eds), The Changing Role of Parliaments in the European Union (Maastricht; EIPA).

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11 See this topic in more detail in Hungarian in Gyo´´ri, op. cit., pp. 374–447 and in English in Eniko´´ Gyo´´ri (2001) ‘The Hungarian parliament and the issue of European integration’, in Attila Ágh and Sándor Kurtán (eds), Democratization and Europeanization in Hungary: The Second Parliament (1994– 1998) (Budapest: Hungarian Centre for Democracy Studies), pp. 75–90. 12 Among the Central and Eastern European applicant states Poland and Hungary were the first ones where parliaments decided to set up European affairs committees. 13 It must be admitted, however, that between 2000 and 2002; the foreign minister briefed the Committee on European Integration Affairs and representatives of the parliamentary parties on the developments in the accession negotiations on a monthly basis. These committee meetings gave ex post information to the members, and were not intended to define the government’s position. Notwithstanding, at the regular meetings with the party representatives, the foreign minister ex ante introduced the Hungarian position to be represented at the forthcoming round of the negotiations to the participants. 14 According to Ágh, applicant countries’ parliaments played only a ‘rubber stamp’ role and were rather indifferent in legislating on EU policy issues (Ágh, 2004a, p. 74). He defines this phenomenon as accession democratic deficit, which prevailed in each ex-communist applicant country during the negotiations for membership (Ágh, 2004b, p. 9). 15 In 2002 the new – socialist – foreign minister interrupted the tradition of these briefings and that of the regular appearances before the Committee on European Integration Affairs. 16 Any amendment to the constitution needs a two-thirds majority in Hungary, i.e. the government needs the opposition’s support for it. 17 Gyo´´ri, 2004, op. cit. 18 In February 2003 a declaration was adopted that all the four parliamentary parties would support EU membership during the EU referendum campaign. In March 2003 parties agreed that the government should be authorized by a resolution of the National Assembly to sign the accession treaty in light of the outcome of the referendum. See Gyo´´ri 2004, op. cit., pp. 424–5. 19 After signing the Accession Treaty in Athens on 16 April 2003, the ten countries’ representatives were entitled to be present in each EU institution, without the right to vote. Consequently, 24 MPs of the Hungarian National Assembly joined the EP as observers on 1 May 2003. They became full MEPs on the day of accession, on 1 May 2004, and their mandate expired with the first EP elections in Hungary on 9 June 2004. 20 In 2005, for example, of the 25 standing committees 16 decided to set up EU subcommittees. Real work, however, has been done only by 7 such bodies. 21 On ‘Eurocapacity’ see more in Atila Ágh, 2002. 22 Gyo´´ri, 2004, op. cit., pp. 387–9. The renewal rate of the whole National Assembly was as follows: 1994 – 64 per cent; 1998 – 53 per cent; 2002 – 32 per cent; 2006 – 29 per cent (www.nol.hu/cikk/ 404017, accessed 26 May 2006). See also Leila Hadj-Abdou and Sándor Kurtán (2004) ‘The role of national parliaments on European Union affairs: a comparative view on Austria and Hungary’, in Attila Ágh (ed.), Post-Accession in East Central Europe. The Emergence of the EU 25 (Budapest: Hungarian Centre for Democracy Studies), p. 156. 23 Despite the interesting agenda of the meetings, discussions often were without great significance. Hungarian members dedicated two to three months to the preparation for each JPC meeting whereas their EP counterparts held two, or at most three, preparatory meetings, where most of them did not even show up. Attendance of the JPC meetings themselves was rather poor on the EP side, too. Hungarian members used to write a report on each item on the agenda, but realizing that these were not necessarily read by the EP side and that EP members only came up with similar documents on a few occasions, enthusiasm and interest declined. The only tool of the JPC was the non-binding recommendation that it adopted and forwarded to the EU institutions and the Hungarian government. Recommendations were always drafted by the Hungarian side and were tabled to the EP. MEPs in general suggested small changes, and there were no real debates on their contents. In each case they were accepted by consensus at the JPC meeting. See more on this in Gyo´´ri, 2001, op. cit., pp. 124–5. 24 The EU–Hungary Association Agreement or Europe Agreement was signed on 16 December 1991 and entered into force on 1 February 1994.

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25 MIÉP (Hungarian Life and Justice Party) got into the parliament in 1998 and was in opposition to the centre-right coalition It was, however, not able to pass the 5 per cent threshold at the 2002 elections. 26 Gyo´´ri, 2004, op. cit., p. 379. 27 For the adoption of all these legal norms a qualified majority (two-thirds of the vote) was needed. See the Parliamentary Information System of the Hungarian National Assembly (PAIR: www.mkogy.hu). 28 The adopted amendment of the constitution is a topic of much discussion among constitutional law experts. Many share the view that it fails to address some of the basic problems – e.g. the role of the National Assembly – and that the hierarchy between EU law and Hungarian law remains unclear. 29 The government’s original draft law on the constitutional amendment did not even mention the future role parliament should fulfil after accession to the EU. Beside the two opposition parties, Fidesz and MDF, the justice minister and SZDSZ, the smaller coalition party opposed it. The compromise was to postpone a decision on parliament’s role and settle this issue in a separate act. See more on this in Gyo´´ri, 2004, op. cit., pp. 416–22. 30 PAIR, op. cit. 31 In Hungary the regulation of a number of subjects listed in the constitution shall be through laws passed only by a qualified majority, i.e. by a two-third majority. 32 See G. Frivaldszky (2005) Statistics on the scrutiny procedure by the Committee on European Affairs, September 2004–June 2005 (Budapest: manuscript). 33 B. Margitay-Becht (2006) Evaluation of the Scrutiny Procedure applied by the Committee on European Affairs during the Fall Parliamentary Semester (Budapest: manuscript). 34 Parliament may also request an extended version of the position from the government, which should include, in addition to the items listed above, an indication of the effective regulation applicable for the subject in Hungary and in the European Union, a brief presentation of the expected economic, budgetary and social impacts of the draft on Hungary and, finally, the EU institutions’ and the member states’ opinions concerning the draft, which are already available. 35 It is important to note that MPs have no access at all to confidential (‘limité’) EU documents. 36 Of the work programme fixed by the bureau of the Committee in September 2005 for the first semester of the 2005–6 parliamentary year, approximately 40 per cent had not been accomplished by December 2005. See Margitay-Becht, op. cit. It is the chair who sets the agenda of each Committee meeting; therefore the realization of the work programme is his responsibility. 37 COSAC (2005) Third Bi-annual Report: Developments in European Union, Procedures and Practices, Relevant to Parliamentary Scrutiny (Brussels). 38 In June 2005 the Committee adopted a standpoint on the government’s position on the 2007–13 EU financial perspective after a hearing with the minister for EU affairs, and – as the June European Council Summit failed – in December 2005 this was repeated. In June 2005 the political secretary of state for environment had been invited to the Committee before the Council reached a political compromise on the draft on the protection of ground waters against pollution. See Margitay-Becht, op. cit. 39 See in n. 43 the procedure applied for negotiating the EU 2007–13 financial perspective. 40 This wording is similar to that of the German Law on the Co-operation between the Federation and the Bundestag on EU affairs (Part 5). See Eniko´´ Gyo´´ri, 2005, op. cit., p. 495. 41 Austrian Constitution Art. 23e (2) 42 In July 2005 the minister for agriculture sent a note to the Committee on the adoption of an EU draft on rural development. 43 It happened on 12 December 2005 concerning the EU draft on sugar reform. See MargitayBecht, op. cit. 44 According to Art. 129 §(1) of the Standing Orders, on the motion of at least one-fifth of MPs a political debate shall be convened on any issue. Each MP is entitled to support such an initiative twice per parliamentary semester. 45 Frivaldsky, op. cit. 46 See more on this in Andreas Maurer and Daniela Kietz (2004) ‘Die neuen Rechte der nationalen Parlamente: Umsetzungsprobleme und Empfehlungen’, SWP Diskussionspapier (Berlin), p. 15.

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47 Art. 16(1) of Act LVII of 2004 on the Statute on the Hungarian Members of the European Parliament. 48 According to Art. 8(2) of Act LVII of 2004, membership of the National Assembly is incompatible with the EP mandate. 49 PAIR , op. cit. 50 According to Art. 10(4) of Act LIII of 2004 each political group may employ two additional civil servants and shall be entitled to employ additional civil servants (one per fifty members) in order to carry out the tasks related to accession to the European Union. 51 Mr László Kovács was appointed to be commissioner responsible for energy, but his presentation in the respective committee of the EP was not very successful. Despite this, the Hungarian government re-appointed him for a new portfolio, that of taxation. 52 On 22 February 2005 the COSAC Secretariat decided to launch a pilot project in order to test the subsidiarity control procedure foreseen by the draft EU Constitutional Treaty in all member states, i.e. all legislatures were supposed to examine the so-called Third Railway Package draft of the Commission from the point of view of subsidiarity. The Hungarian Committee discussed this subject on 4 April 2005. 53 It was exactly the period when the four-party talks reached a stalemate situation (see section 3 above). 54 After losing the June 2004 EP elections, the ruling Socialist Party decided to reshuffle the executive. The former head of government, Péter Medgyessy, resigned in August and the new prime minister, Ferenc Gyurcsány took office at the end of September 2004. 55 In www.cosac.org, January 2006.

13 The National Assembly of the Republic of Slovenia and EU affairs before and after accession Primozû Vehar Introduction According to the constitution Slovenia is a democratic republic, where the state’s authority is based on the principle of the separation of legislative, executive and judicial powers, with a parliamentary system of government. The highest legislative authority is the National Assembly with 90 deputies which has exclusive jurisdiction over the enactment of laws. The members of parliament are elected by universal, equal, direct and secret voting for a term of four years on the basis of the principle of proportional representation with a 4 per cent threshold required. In compliance with the constitution, one representative of each of the autonomous Italian and Hungarian national communities is directly represented in the National Assembly. The constitution was adopted on 23 December 1991, following the results of a plebiscite on the sovereignty and independence of Slovenia on 23 December 1990, when Slovenes overwhelmingly voted for an independent state. The constitution accelerated the process of political and economic reform aimed at establishing a parliamentary democracy and market economy. The constitution states that Slovenia is a state of all its citizens and is founded on the permanent and inalienable right of the Slovenian nation to self-determination. It lays the foundations for the legal system, which is based on respect for human rights and fundamental freedoms, on the principle of a legal and socially just state, on a parliamentary form of state authority, and on the separation of legislative, executive and judicial powers. The constitution can be amended following a proposal made by twenty National Assembly deputies, by the government or by at least 30,000 voters. Such a proposal is decided upon by the National Assembly by a two-thirds majority vote of deputies present, where a two-thirds majority vote is needed for adoption of amendments to the constitution. The National Assembly must submit a proposed constitutional amendment to voters for adoption in a referendum, if so required by at least 30 deputies. In the context of the European Union (EU) Slovenia undoubtedly has one of the smallest national parliaments. But bearing in mind the population of only 2 million people, 90 deputies is a reasonable number. Following parliamentary elections in October 2004, the 90 seats in the National Assembly are divided as follows: Slovenian Democratic Party, 29 seats; Liberal

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Democracy of Slovenia, 23; Social Democrats, 10; New Slovenia – Christian People’s Party, 9; Slovenian People’s Party, 7; Slovenian National Party, 6; Democratic Party of Pensioners of Slovenia, 4; and the representatives of national communities, two seats. The main Slovene parties are all supportive of European integration.1 These MPs are organized into six political groups and perform their duties not only through plenary sessions but also through more than 20 parliamentary working bodies where the Committee for EU Affairs and Committee for Foreign Affairs (in cooperation with standing committees) play a central role in EU matters. At its sessions, the National Assembly passes laws and makes other decisions, as well as ratifying international agreements with a majority of the declared votes of deputies present, unless the constitution or the law stipulates a different majority. Draft laws may be proposed by the government or by any deputy as well as by at least 5,000 voters. The National Assembly may call a referendum on any issue, which is the subject of regulation by law and it is bound by the result of such a referendum. The National Assembly also has the power to declare war or a state of emergency, as well as decide on the use of the defense forces. Special-interest organizations and local communities are represented through the National Council which is a mainly advisory body. It may propose draft laws to the National Assembly, it may demand that the National Assembly reviews its decisions on a law before its promulgation and may give opinions on specific issues at the request of the National Assembly. It also may initiate a referendum relating to legislation and commission a parliamentary enquiry where that is deemed necessary. The National Council has 40 members known as councillors: 22 representatives of local interests, 6 members representing the non-commercial fields, 4 representatives of employers, 4 representatives of employees, and 4 representatives of crafts and trades and independent professions. The councillors are elected for 5 years by the elected representatives of specialinterest organizations and local communities. After 1 May 2004, when Slovenia officially became an EU member state, the National Assembly maintains its current function only in that part of legislation which remains under the full sovereignty of Slovenia. In fact, after the successful referendum on EU membership, by ratifying the Accession Treaty on 28 January 2004 with 80 deputies out of 84 present the National Assembly gave up its legislative function in that part of legislation which is transferred to EU institutions.2 In this respect, it remains in charge of the harmonization of Slovenian legislation with the adopted EU legislation (directives), unless they are directly applicable (such as regulations and founding Treaties). But a great deal of the assembly’s competences has now moved to Brussels. The National Assembly is also charged with ratification of all amendments to the founding Treaties resulting from Intergovernmental Conferences (IGCs) and shall cooperate with the government which participates in the EU legislative procedure through the Council. However, cooperation with the government and the exercise of supervisory powers in relation to the EU legislative procedure is possible only if the National Assembly is properly informed about the broad range of activities within the EU, if it is able to influence decisions before they are adopted by ministers in the Council, or the heads of government in the

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European Council, and if MPs can ask the members of the government to explain how they acted in the EU institutions. 3

The role of the National Assembly in the preaccession period The substantive role played by the National Assembly in the pre-accession process can be examined by reference to its three crucial functions: 1 2 3

amending the constitution prior to ratifying the Association Agreement (known as Europe Agreement) in 1997; participation in the actual negotiating process for accession from 1998 until 2002; and amending the constitution concerning the transfer of sovereignty and relations between government and the parliament in EU matters as well as preparing and adopting the law on relations between parliament and government in EU matters in 2003–4.

Slovenia formally applied for EU membership on 10 June 1996, the last of the Central and Eastern European ‘new’ democracies to do so. That late application resulted from the problems concerning the Europe Agreement, especially its Annex XIII,4 also known as the ‘Spanish compromise’,5 which was unique among all the candidate states. In Annex XIII, the Slovene government committed itself to take the necessary measures to allow the citizens of EU member states, on a reciprocal basis, the right to purchase real estate in Slovenia on a non-discriminatory basis by the end of the fourth year from the entry into force of the Europe Agreement, and to grant the citizens of EU member states, permanently residing on the present territory of Slovenia for a period of three years, on a reciprocal basis, the right to purchase property from the entry into force of the Europe Agreement. Before the ratification of the Europe Agreement in the National Assembly a constitutional amendment was needed which arose out of an opinion issued by the Constitutional Court, requesting the government to provide prior evaluation of the constitutionality of some of the provisions of the Europe Agreement, as the provision of Annex XIII was in disagreement with a provision of the constitution, according to which foreigners may not acquire title to land except by inheritance subject to reciprocity. The Europe Agreement was finally ratified by the National Assembly in July 1997 after the constitutional amendment of Article 68,6 thus allowing foreigners the right to acquire title to land under certain conditions. In this way, Slovenia solved the problem surrounding the free movement of capital, and therefore closed one of the most sensitive negotiating chapters within the accession framework, even before the negotiations began; the National Assembly for its part in agreeing to amendments to the Constitution clearly expressed its direction towards the EU. Another significant constitutional problem arose during the negotiations for EU membership which began in March 1998. The National Assembly had a

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(theoretically) strong scrutiny role to play in this process through its Committee for Foreign Affairs, which had to confirm officially all governmental negotiating positions, as well as through the Commission for European Affairs, which regularly placed EU matters on its agenda. Although a core negotiation team was formed from the government (with independent experts and representatives from Chambers of Commerce and Industry), all negotiation positions were presented in advance to the Committee for Foreign Affairs, which confirmed them after holding debates in camera. Such an approach, with the National Assembly actively included in the negotiation process, represented a novel and quite uniquely muscular solution to involving parliament in the accession negotiations, and the parliament was given an active scrutiny role and not just the status of observer in the unfolding drama. On the other hand it was clear that the National Assembly, with limited expert knowledge on specific technical areas, concentrated mostly on acquiring information with the possibility of engaging the government in debate although in the end it usually confirmed all positions or only slightly amended them. For the government the participation of parliament in the negotiation process offered the advantage of shared political ownership and thus, at least in theory, bringing the whole process closer to the citizens. The National Assembly had already in 1996 set up a Commission for European Affairs; however, given its structure and taking into consideration the powers to be shared with other working bodies, it was not able to function satisfactorily and to carry out its task of parliamentary control over the work of the government with regard to EU matters before accession, nor was it able to do so properly upon accession when the volume of EU-related documents increased considerably. The Commission for European Affairs was quite successful in some specific areas, including a positive engagement with the work of the European Convention, where the chairperson of the Commission was invited to the Convention Presidium and in the work of the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC). It had shortcomings, however: a small membership, of ten people only; no role for the specialized parliamentary committees in EU matters; that it was not a permanent Committee but a commission; and, most importantly, no clear division of competences with the Committee for Foreign Affairs. Some of these shortcomings resulted not only from the fact that the opposition held the chair of the Commission for European Affairs but also from the lack of awareness of EU matters among deputies at a time when accession seemed quite far away. The constitutional problem was that accession to a supranational organization like the EU was not in accordance with the Slovenian constitutional order until the latter was amended in March 2003, because the transfer of sovereign rights implied by accession was not foreseen and not allowed by the constitution.7 The supranational character of the EU Treaty requires that a certain amount of legislative, executive and judicial powers are transferred to the EU institutions and individual member states dilute their exclusive sovereignty in these areas by sharing that sovereignty. Moreover, because of the direct application (where this is possible) of EU law, the national courts and other institutions are required to give precedence to EU law over the national constitution and, of course, also over any

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other national legal norms. These facts were and still are viewed suspiciously by many traditionally orientated lawyers and politicians, who insist on the position that the national constitution is hierarchically the highest legal act in Slovenia and that all state authorities, be they from the legislative, executive or the judicial branch, have to respect this hierarchy and protect it.8 This conflict, certainly not unique to Slovenia, was overcome in the course of the accession process by the amendment of the Slovenian constitution based on Article 3, which states that all powers are derived from the nation and are executed by the national institutions. In 2003, the prospect of near accession to the EU also opened up some additional constitutional issues besides that outlined here of the hierarchy of legal acts and the transfer of sovereignty. The most important of these issues was the post-accession re-constitution of relations between the government and the parliament in the broad area of EU affairs.9 The constitution was amended in March 2003 with the new Article 3a and amendments to Articles 47 and 68 considered as the crucial changes. It is worth reproducing them here to illustrate some of the above points. Article 3a Pursuant to a treaty ratified by the National Assembly by a two-thirds majority vote of all deputies, Slovenia may transfer the exercise of part of its sovereign rights to international organizations which are based on respect for human rights and fundamental freedoms, democracy and the principles of the rule of law and may enter into a defensive alliance with states which are based on respect for these values. Before ratifying an international treaty referred to in the preceding paragraph, the National Assembly may call a referendum. A proposal shall pass at the referendum if a majority of voters who have cast valid votes vote in favor of such. The National Assembly is bound by the result of such referendum. If such a referendum has been held, a referendum regarding the law on the ratification of the treaty concerned may not be called. Legal acts and decisions adopted within international organizations to which Slovenia has transferred the exercise of part of its sovereign rights shall be applied in Slovenia in accordance with the legal regulation of these organizations. In procedures for the adoption of legal acts and decisions in international organizations to which Slovenia has transferred the exercise of part of its sovereign rights, the Government shall promptly inform the National Assembly of proposals for such acts and decisions as well as of its own activities. The National Assembly may adopt positions thereon, which the Government shall take into consideration in its activities. The relationship between the National Assembly and the Government arising from this paragraph shall be regulated in detail by a law adopted by a two-thirds majority vote of deputies present. Article 47 No citizen of Slovenia may be extradited or surrendered unless such obligation to extradite or surrender arises from a treaty by which, in accordance with

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In accordance with the new constitutional article, there are more rigorous conditions for ratification than before, because a two-thirds majority vote of all deputies is needed for ratification of a treaty that transfers the exercise of part of its sovereign rights to international organizations.10 All those in Slovenia who were excited about or afraid of the fact that, after EU accession, the directly elected representatives of the people would no longer exclusively exercise control in EU matters were proved wrong when the new Article 3a of the Slovene constitution was promulgated in March 2003, especially because of the procedures set forth in paragraph 4. The National Assembly thus obtained a potentially important and empowering role in the domestic procedure for the adoption of EU decisions and in this sense followed the example of Germany, France, Sweden, Austria, Finland and Hungary,11 where the relationship between the executive and the legislature in terms of EU matters was also specified constitutionally. The procedure for amending the Slovenian constitution in 2003 took place parallel to EU reforms whose key objective was to make the EU decision-making process and the supervision thereof more democratic and responsible and bring it closer to the citizens, i.e. to strengthen the role of national parliaments in the decision-making process. Slovenian parliamentarians were on the whole happy with the outcome of the European Constitutional Process, where the draft Constitutional Treaty increased democratic control over decision-making in the EU and strengthened the role of national parliaments12 in EU legislative and decisionmaking procedures. This was provided for by the Protocol on the application of the principles of subsidiarity and proportionality and the Protocol on the role of national parliaments in the EU (more efficient participation in the EU legislative procedure) as well as by several other provisions of the draft Constitutional Treaty,13 which, after negative referendums in some EU member states will not be adopted very soon – if adopted at all.

The National Assembly and EU matters after accession With the conclusion of the Treaty of Accession, the long accession process was finally complete. It should not be forgotten that the initiation of relations between Slovenia and the European Community (EC)/EU did not begin with the establishment of diplomatic relations in 1992, but rather at a much earlier date when Slovenia was still a part of Yugoslavia. The first trade negotiations began in the 1960s and culminated in several trade agreements later on.14 Thus Slovenian relations with the EC and EU following the fall of the Iron Curtain were really just a

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continuation, albeit on a politically higher level, of those which had already been established by trade connections. This is without doubt one of the reasons for the different economic situation of Slovenia compared to other Central and Eastern European EU member states. It was already clear before accession that the work and decision-making activity of the Council, as the legislative authority of the EU, would not directly involve the National Assembly as the legislative authority in Slovenia but privilege the government as the executive authority which gained legislative powers in relation to the exercise of that part of sovereign rights transferred to the EU institutions. If we consider decision-making in the Council, we see that it occurs at the levels of working groups, committees and the actual Council of Ministers, where at all three levels representatives of the member states’ governments participate in the process and discuss the legislative proposals of the Commission. The relationship between government and parliament in Slovenia is, at least theoretically, very clear, namely the government is accountable to the National Assembly for the state policy it conducts and for the situation in all spheres of activity within the state jurisdiction. The government is responsible also for the implementation of laws and other regulations adopted by the National Assembly and the functioning of the state administration in its entirety. The result can seen in the support given to the government by the National Assembly through votes of confidence or no-confidence or, directly, through interpellation. Nevertheless, the National Assembly decided to include in the constitution the requirement to adopt a special law on the relationship between the National Assembly and the government with regard to EU matters. The reason is the specific nature of decisionmaking on EU matters and because of the interference in the constitutional relationship between the legislative and executive branches of power since the executive branch prevails over the parliament.15 After the signing of the Accession Treaty in April 2003, government representatives were invited to attend, without voting rights, the sessions of the Council and its working bodies. The Commission began sending legislative acts and other documents to the government, and seven deputies of the National Assembly attended plenary sessions of the European Parliament (EP) and meetings of some of its working bodies as observers, etc. All these activities increased the workload of the entire state administration, particularly the National Assembly, where, given the increased amount of work, a reorganization of its services was inevitable. The main dilemma facing the National Assembly was whether it should exercise preliminary control over the work of the government – which in the EU arena would largely monopolize the legislative function – or should it as a preliminary confirm the government’s positions, which would otherwise come under the jurisdiction of the National Assembly? Another important question was which standing committee of the National Assembly should exercise such control – that responsible for an individual issue, or the committee responsible for European Affairs or for Foreign Affairs, or maybe, the National Assembly at its plenary session? Given the existing organization in 2003, one year before accession, MPs and their administrative support staff asked what the National Assembly or its standing

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committees could impose on the government or require from it through its decisions. Could parliamentary committees determine how the government would vote in the Council although it is an autonomous bearer of executive authority that – in accordance with the constitution and laws (adopted by the National Assembly) – determines, guides, and harmonizes the implementation of the policy of the state and takes the necessary measures in this respect? If we analyse the division of labour on EU affairs in individual member states, we notice different degrees of involvement of national parliaments, from the national parliaments having no role and receiving information from the government on its activities in the EU only at a later stage, to the other extreme where the parliament has the possibility to formulate positions which are fully binding on the government and the latter cannot act in the Council without the explicit support of the parliament. Most common, however, is another scenario which lies somewhere between the two mentioned above and probably better fits the situation as it has developed in Slovenia: in this third case, the parliament may formulate positions that bind the government only in a loose political sense but exercises parliamentary control over the adoption of legislation. The executive retains formidable power and the parliament does its best to maintain influence. The first steps taken by the National Assembly in the re-organization of executive–legislative relations on EU issues included, first, establishing a new expert coordination Committee for EU affairs, involving the other standing committees in the processing of EU matters belonging to their scope of work, and, second, opening an office in the EP to cooperate with the EU institutions. Upon accession then, EU affairs were no longer a matter of international cooperation but of participation in internal legislative procedures within Slovenia. The law referred to in the fourth paragraph of Article 3a of the national constitution became operational in December 2003 as the heads of seven major political groups in the parliament accepted it; it is worth mentioning that it was not drafted by the government, but by the expert services of the National Assembly. The law was adopted in March 25, 2004 and came into force on 23 April 2004, just a week before Slovenian accession to the EU.16 Initially, the law defines EU affairs and the relationship between the government and the National Assembly; the government is autonomous in carrying out its tasks and accountable to the National Assembly for the decisions it takes and the policy it conducts. The law clearly provides that the National Assembly only deals with those EU affairs which, given the subject they deal with, come under its responsibility. The leading role is played by two parliamentary working bodies: the Committee for European Affairs and the Committee for Foreign Affairs, which both adopt decisions on EU affairs on the basis of the positions of relevant standing committees. The meetings of these two committees are closed to the public when discussing EU matters, while the material produced for and in the meetings is publicly available. There is also the possibility that an individual EU matter considered to be of high importance can be discussed in plenary session under certain circumstances.

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In accordance with Article 3a of the constitution, the government must inform the National Assembly of all EU issues and present them to it, together with an assessment of the state of affairs and potential impact on Slovenia. According to the law the government shall forward to the National Assembly the data regarding the procedure for the adoption of the proposed act in the EU, the basic solutions and objectives of the draft act, the expected date of the beginning of discussion and adoption of the regulation in the Union. These data shall be forwarded to the National Assembly together with the draft position of Slovenia prepared by government including the above mentioned assessment of the impacts and implications of the legislative change as soon as it has been proposed and forwarded by the Commission, but no later than five weeks from its receipt.17 The government then is required to take the position adopted by the National Assembly’s working body into account in the way it proceeds. Should it take a different decision, it informs the National Assembly thereof and indicates the circumstances that have led to such. According to the Law on Cooperation between the National Assembly and the government in EU affairs we can find three levels of EU affairs which the National Assembly engages with: U-affairs: EU affairs that given their subject matter would fall within the competence of the National Assembly in accordance with the constitution and other laws – the National Assembly participates here in the formulation of national positions, including amendments to the Treaties on which the EU is founded; and declarations on the political guidelines for the activity of Slovenia within EU institutions in the coming period; S-affairs: the government informs the National Assembly on U-affairs and reports on its decisions and actions taken in relation to U-affairs in EU institutions; the government informs the National Assembly of other documents that are relevant for the exercise of its constitutional powers and concern the political and programmatic aspects of the activity of the European Union; E-affairs: other EU affairs that fall within the competence of the government, discussed by the National Assembly on a proposal from the government or at its own initiative. In the National Assembly, EU affairs are debated and the positions of Slovenia thereon taken by the Committee on EU Affairs, while affairs concerning EU foreign and security policy are discussed and the positions thereon taken by the Committee on Foreign Affairs. In the discussion of EU affairs, the working bodies responsible are all of the other National Assembly’s working bodies which may adopt opinions on EU affairs pertaining to their scope of work and forward them to the competent committees. At plenary sessions, the National Assembly discusses EU affairs, which, given their subject matter would fall within its competence in

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accordance with the constitution and laws, and adopts the positions of Slovenia thereon. The positions adopted by the National Assembly at plenary sessions are then binding on the government. A request for discussion at plenary session may be presented by at least one-quarter of the deputies, the Committee on EU Affairs, the Committee on Foreign Affairs or the Council of the President of the National Assembly. The National Assembly also discusses and takes positions on the amendments to the Treaties on which the EU is founded. At least once a year, it discusses the state of affairs in the EU and the position of Slovenia therein, and adopts positions on the political guidelines for Slovenia’s future activity in EU institutions. As a general rule, the Committee on EU Affairs and the Committee on Foreign Affairs adopt decisions on the basis of the opinions issued by the working bodies responsible. Such positions become the positions of Slovenia which the government takes into account in its activities within EU institutions. Should the government in the process of enforcing these positions assess, given the course of negotiations in EU institutions, that the enforcement or full enforcement thereof would not be possible or in favour of the national interest of Slovenia, it may decide otherwise. In such an event, it must immediately inform the National Assembly and state the circumstances that have led to such a decision. Sessions of the working bodies of the National Assembly at which EU affairs are discussed and decided are closed to the public, while the materials and the conclusions adopted by the working bodies are made public unless defined confidential in accordance with the law. Committee meetings which are closed to the public are normally followed by a chairperson’s public statement. The prime minister, the ministers, the heads of government offices, the representatives of the working bodies responsible, a representative of the National Council, and a representative of the Legislative and Legal Service are invited to attend meetings of the competent committees and present and explain the opinions adopted or issued. Representatives of the expert public, civil society, business, and associations may be invited to the discussion of individual items on the agenda of a meeting of the competent committee when the subject matter of the issues under discussion is related to their work, and may present their opinions. Meetings of the competent committee may also be attended by Slovenian Members of the European Parliament (MEP), who may also take part in the debate. In accordance with the Rules of Procedure of the National Assembly, Slovenian MEPs may also attend meetings of the Committee on EU Affairs and of the Committee on Foreign Affairs when EU matters are discussed, and may take part in the debate but not in the voting. Similarly, members of national parliaments may participate in the work of EP committees and have – when invited – the right to speak. The EP’s Rules of Procedure also provide that the European Parliament keeps the national parliaments of member states regularly informed of its activities, and authorize its President to adopt – on the basis of reciprocity – measures to enhance cooperation with national parliaments. Like most other parliaments of EU member states, the National Assembly has its representative in the EP who

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regularly informs the National Assembly of the activities taking place at meetings of working bodies and at plenary sessions of the European Parliament.

Conclusions When designing its own system of parliamentary scrutiny of EU matters, the National Assembly examined and took into account the experiences of other EU member countries. This applied especially to the Finnish parliament’s mechanisms for dealing with EU affairs,18 which the Assembly found to be the most realistic and efficient system and which it tried to ‘upgrade’ or improve further in some points, such as through the possibility of involving the plenary session more in EU affairs, as well as assigning a greater role to the standing parliamentary committees, which deliberate on EU matters prior to the engagement by the Committee for European Affairs. From a constitutional perspective, normative preparations for work after 1 May 2004 in the National Assembly were completed upon the adoption of the constitutional amendment (Article 3a), of the law regulating the cooperation between the National Assembly and the government in EU matters, the amendment of the Rules of Procedure of the National Assembly, the adoption of ordinances on the establishment of working bodies, and especially a new Committee on EU Affairs with 16 deputies as members, as well as upon the adoption of acts related to the organization and services of the National Assembly. Also of crucial importance was the provision of training for the expert members of parliamentary staff, who were aware that they could no longer be divided into civil servants dealing with purely domestic issues and those dealing with international and European issues; this was agreed, and that the key to any separation of responsibilities should be in the topics they deal with on behalf of the Assembly. A lawyer who deals with, for example, laws regarding the environment in the competent standing committee or in the Committee for EU Affairs or in the Legal Service, will also have to consider the relevant EU legislation that will have been transposed into Slovenian law following its adoption in EU institutions. Examining scrutiny in practice, policy expertise is again an essential prerequisite for influence. The European Commission sends to the government a draft directive and the latter will present it to the National Assembly. A few weeks later, the government adds the assessment of the state of affairs and of the impact on Slovenia. The draft is first discussed by the competent standing committee of the National Assembly and then by the Committee for EU Affairs or Committee for Foreign Affairs. The adopted decisions are binding on the government in its work in the Council’s working groups. Following the discussion in the European Parliament and prior to the discussion in the Council, the competent standing committee and the Committee for EU Affairs reconsider the issue while the government, if necessary, supplements it with the assessment of the state of affairs and of the impact. The minister should explain to the National Assembly her or his positions and voting strategy before leaving for the Council. At the next session which follows, the members of the Committee for EU Affairs or Committee for Foreign Affairs are informed through the minister’s written report about the discussion and vote and the final version of the EU law. Most work is, or should be done, by expert

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staff members who would have to be familiar with the Commission’s proposal and modes of operation, and also with the work of the EP and its committees, the competent Slovenian ministry and the committees of the National Assembly. One should also take into account the relationship between the National Assembly and the European Court of Justice (ECJ) with regard to preliminary issues as well as claims against Slovenia for violations of the acquis; as legislator, the National Assembly will have passive legitimacy.19 Despite the participation of foreign lawyers and the public attorney, the participation of a competent lawyer of the National Assembly is also necessary to cooperate with the above bodies, prepare documentation and act before the Court in favour of Slovenia. All the above tasks require policy and legal expertise from the staff as well as from members of the Committee on EU Affairs, plus a solid command of English and/ or French (initially part of the draft acts are delivered to the National Assembly in the said languages) and knowledge of the organization of the EU, as well as team work and cooperation with the ministries and colleagues within the National Assembly. Looking into the future, there are several opportunities and challenges for the National Assembly. The question is not any more whether the National Assembly is able to prepare legal acts and take the normative opportunity of participating in the EU legislative procedure through the government. The real issue is that the constitution, the law on cooperation between the National Assembly and government and changes of its Rules of Procedure, all carefully and professionally prepared, should be implemented accordingly, which is not always the case due to the fact that a new member state, especially its directly elected representatives, obviously needs time to understand the complexity of EU matters and the relation between the legislative body and the government in that case. Nevertheless, the system of cooperation between the parliament and government in EU matters as described in this chapter seems to work quite well. Solutions like the establishment of the specialized parliamentary EU Affairs Committee, including the standing committees in the process, holding at least once a year a general debate on the state of affairs in the EU and the position of Slovenia, having a permanent representative in the EP, inviting Slovene MEPs to participate in the Committee for EU Affairs, as well as good exchange of information with the EP and with other national parliaments through COSAC and through the new IPEX database (Interparliamentary EU Information Exchange) and the ECPRD (European Centre of Parliamentary Research and Documentation) also add value to the endeavours of Slovenian parliamentarians and civil servants. It seems clear that the national parliament cannot play the same role in the EU decision making process as the government, but it can influence strongly the nature of the domestic scrutiny of governmental activity in Brussels and the legislative acts that flow from EU cooperation. Alas, the price for the members of the Committee on EU Affairs in Slovenia is that they spend Friday afternoons at sessions closed to both the media and the general public.

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Notes 1 For information on party positions on European integration in Slovenia, see, for example, Alenka Krasovec, Simona Kustec-Lipicer and Damjan Lajh (2004) ‘The European Parliament election in Slovenia, June 13 2004’, 2004 European Parliament Election Briefing Papers, 18 (Sussex European Institute: European Parties Elections and Referendums Network). 2 In areas like the internal market with the four freedoms (free movement of goods, capital, persons and services), competition, economic and monetary affairs, agriculture, asylum and migration, transport, employment, trade, industry, consumer protection, environment, etc. 3 Koen Lenaerts and Piet van Nuffel (1999) Constitutional Law of the European Union (London: Sweet & Maxwell), pp. 387–92. 4 Annex XIII – Exchange of Letters between the European Community and its Member States, of the one Part, and the Republic of Slovenia, of the other part, concerning the provisions of the Article 64(2) of the Association Agreement. 5 Named after the Spanish presidency of the EU that proposed the text of the Annex XIII. 6 The Amendment of the Constitution, precisely its Article 68 in July 1997 was: ‘Foreigners may acquire ownership rights to real estate under conditions provided by law or if so provided by a treaty ratified by the National Assembly, under the condition of reciprocity. Such law and treaty from the preceding paragraph shall be adopted by the National Assembly by a two-third majority vote of all deputies.’ 7 The Constitution, Art. 3 para.(2): ‘In Slovenia supreme power is vested to the people. Citizens exercise that power directly at elections, and consistently with the principle of the separation of legislative, executive and judicial powers.’ 8 Regarding the Constitution of the Republic of Slovenia and its relation towards the Europe Agreement and implementation of international law, see also Primoû Vehar (2001) ‘Constitutional problems in the period of the pre-accession in the Republic of Slovenia’, in Alfred Kellermann, J. de Zwann and Jeno Czuczai (eds), EU Enlargement: The Constitutional Impact at EU and National Level (The Hague: TMC Asser Press), pp. 369–74. 9 Concerning the new role of the Slovenian parliament, see Primoû Vehar (2004) ‘The National Assembly of the Republic of Slovenia and EU affairs after accession,’ Forum Parlament, 2, 1: 16–20. 10 Regarding the role of the national parliament in the EU as well as constitutional amendments, see also Miha Poga¹nik, Marko Starman and Primoû Vehar (2006), ‘Slovenia’, in Alfred Kellermann, Jeno Czuczai, Steven Blockmans, Anneli Albi, and Wybe Douma (eds), The Impact of EU Accession on the Legal Orders of New EU Member States and (Pre-)Candidate Countries, Hopes and Fears (The Hague: TMC Asser Press), pp. 179–94. 11 Article 23 of the German Constitution, Article 88 of the French Constitution, Articles 2, 5 and 6 of the Swedish Instrument of Government, Article 23e of the Austrian Constitution, Articles 96 and 97 of the Finnish Constitution, Article 35a of the Hungarian Constitution. Another fact common to all the above constitutional provisions is that they all use the term ‘European Union’. 12 On the role of national parliaments in the EU, see Primoû Vehar (2002) ‘Dr avni zbor RS – še zakonodajni organ z dnem pristopa k EU?’, Pravna praksa, 40, Annex; (2002) ‘Nacionalni parlamenti in njihova vloga v EU’, Pravna praksa, 45: 4–7; (2003) ‘Dr avni zbor – po finskem modelu?’, Pravna praksa, 18: 11–13. 13 In addition to the protocols, the most interesting references to national parliaments in the draft Constitutional Treaty include: the principle of representative democracy; confirmation of compliance with the principle of subsidiarity; providing information to national parliaments when the European Council is involved in the legislative procedure; information on membership applications; participation in assessment mechanisms in the area of justice, freedoms and security; involvement in the political control of Europol; participation in the assessment of the work of Eurojust; information about the proposals of the Constitutional Treaty; participation in the procedure for amending the Constitutional Treaty, etc. 14 Such trade agreements include: The Trade Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia, signed in Brussels on 19 March 1970, Official Journal online L 58, 13 March 1970, p. 2; Agreement extending the period of validity

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z Vehar Primozû of the Trade Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia, Official Journal online L 117, 3 May 1973, p. 2; Trade Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia, Official Journal online L 224, 13 August 1973, p. 2; Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia on trade in cotton textiles, Official Journal online L 182, 5 July 1973, p. 2; Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia on trade in textile products, Official Journal online L 188, 28 July 1977, p. 2; Agreement between the European Economic Community and the Socialist Federative Republic of Yugoslavia on trade in textile products, Official Journal online L 273, 28 September 1981, p. 162; Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia, Official Journal online L 41, 14 February 1983, p. 2. The necessity and reasons for regulating the relationship between government and parliament with regard to EU matters in the constitution are indicated in detail in the explanation to the draft Constitutional Act Amending the Constitution, Poro¹evalec DZ RS, No. 21, 2003; M. Cerar (2003), ‘O nujnosti sprejetja novega 3. a ¹lena ustave’, Evropsko pravo in praksa, 1; and Primoû Vehar, 2001, op. cit. Act on Cooperation between the National Assembly and the Government in EU Affairs, Official Journal of Republic of Slovenia, 34, 4, 8 April 2004. The assessment of the impacts and implications according to the law comprises in particular the following aspects: the necessity of amending the regulations, the implications on budget, the impact on the economy, the impact on public administration and the impact on environment See the chapter by Hans Hegeland in this volume. Pursuant to Articles 226 and 227 of the EC Treaty.

14 Parliamentary involvement in the EU accession process The Bulgarian experience Pavlina Stoykova

Introduction In recent years academic scholarship within European Union (EU) studies has shifted attention to the impact of European integration on the former communist countries. This is hardly surprising given the profound changes in almost every aspect of economic, social and political life which have followed in the wake of accession-related commitments and accession itself. However, as yet, these studies have largely been confined to the first wave of applicants from East Central Europe and the case of the South-East European countries remains largely unexplored. In this chapter, therefore, I shall seek to open up this debate through an empirical study of how and why actors in South-East Europe incorporate ‘Europe’ into domestic political institutions and practices. More specifically, using Bulgaria as a case study, I examine parliamentary involvement in EU matters during the accession process. Bulgaria lodged its membership application in 1995. Like Romania it was not considered for inclusion in the so-called ‘first wave’ of eastern enlargement in 2004, largely because of continuing and significant deficiencies in its administrative and judicial structures and broader fears about its ability to implement EU laws. Despite remaining outside official EU structures, however, Bulgaria saw ‘Europe’ hit home in a very pronounced way as it continued preparations for membership, which was finally achieved in 2007. Indeed, the EU has arguably had even more of an impact on Bulgaria than on any of the countries which acceded in 2004. The chapter builds upon and evolves out of studies of Europeanization within the EU literature. It adopts the understanding that the ‘deparliamentarization’ hypothesis can only be documented successfully through examination of the relative empowerment (and/or disempowerment) of the executive and legislative branches of government in Europe, and its impact on the gap between the formal legal and actual political powers of national parliaments. Hence, its starting points are the formal competences of the domestic political institutions. The empirical data presented from the Bulgarian case study supports the hypothesis that the particularistic demands of the accession negotiations, allied with the applicant state’s resource dependency on the European Commission, have had an indirect negative impact on the institutionalization of the Bulgarian parliament’s role in the

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accession process. In short the Bulgarian parliament was a ‘victim’ of the accession process as it has lost significant ground to the executive branch the closer it came to membership.

Formal competences of the Bulgarian National Assembly The Bulgarian National Assembly, the Subranie, consists of 240 members directly elected by the people for a term of four years. The division of powers between the legislature and the executive lies at the core of the constitutional order and defines the legal template for their interaction within the policy-making process. The Bulgarian constitution established a form of governence based on representative government and the separation of state power into legislative, executive and judicial branches. The pourvoir constituant chose to proclaim explicitly its adherence to the above principle in the ‘Fundamental Principles’ section of the Constitution.1 The Council of Ministers2 (the government) is the central executive organ which ‘shall head the implementation of the state’s domestic and foreign policy’.3 Its powers are balanced by the capacity of the parliament to take part in the formation of and assistance in policy-making in Bulgaria. The National Assembly is exclusively vested with legislative authority and the powers to exercise parliamentary control and scrutiny.4 The constitutive function of the National Assembly is to elect, on a motion from the prime minister, the members of the Council of Ministers, the President and members of the National Audit Office, the Governor of the Bulgarian National Bank and his/her Deputies, and the heads of other institutions established by a law. It should be stressed that clear separation between these functions is impossible in practice since they are mutually constitutive. On paper, Bulgaria is considered to have a parliamentary form of government, with a functional executive and nominal presidency.

Accession and European policy-making capacity The constitutional provisions in Bulgaria do not define how foreign policy issues should be dealt with nor the exact institutional division of labour in this regard. Their everyday operational management falls within the immediate competences of the central executive organs. However, the parliament has been assigned significant powers for both the initial formulation and further implementation of foreign policy. These provisions, at least in theory, leave the Bulgarian parliament well placed to contribute to foreign policy decisions. In this respect the management of EU affairs provides a qualitatively new testing ground for the institutionalization of the parliament’s competences and policymaking capacity. This is not least because the dividing line between EU issues as domestic policy or foreign policy has been reduced significantly over the years and, in Bulgaria as in other jurisdictions provoked debate about institutional prerogatives and competences. Broadly, for Bulgaria the evidence shows that the integration process has resulted in a gradual and accelerated transfer of

Parliamentary involvement in the EU accession process 257 powers from the legislative to the executive branches of government and in the marginalization of the former. For Bulgaria the initiation and further normalization of its political relations with the EU was primarily driven by the ‘grand decisions’ of the National Assembly. Already in the early 1990s, referring to the progress already made by Poland and Hungary in re-constituting their relations with the European Community (EC), the Bulgarian parliament clearly articulated the necessity of advancement towards signing a Trade and Cooperation Agreement (TCA) with the EU. In fact in 1990 the Bulgarian parliament adopted a decision whereby the willingness of Bulgaria to become a member of the EC was officially expressed and the signing of a Europe Agreement was regarded as a concrete step towards this ultimate goal. Hence, the parliament sought to set the direction for the government’s efforts to deepen political cooperation with the Community and provided it with an explicit mandate for further action to achieve such. Thus it fully utilized its formally enshrined powers to define the strategic goals and general priorities of the new democratic Bulgaria’s foreign policy. This substantial involvement of the parliament in the European policy-making process represents a trend common for the Central and East European Countries (CEEC) in the early 1990s. It reflects the concern of the EC with the stabilization of the new fragile democratic institutions and the identification of the latter as the main political partners in the first years of transition. However, it is important to remember that the EC’s approach itself was determined by the constitution of the parliaments as major loci of systemic change that sought to overcome the conditions of passivity experienced during communism.5 Thus, the EC’s approach towards the Eastern European countries was responsive to rather than determining the balance of institutional power within the domestic policy-making process; in Bulgaria as elsewhere it is simply a mistake to privilege EU influence or pressure as the main variable explaining domestic policy changes at this early stage. It would take a number of years before any type of coherent EU approach to the region manifested itself. The subsequent deterioration of the parliament’s capacity to participate further in the making of foreign policy (including EU affairs) really only took root with the increased leverage of the EU towards the CEECs as a more identifiable accession scenario unfolded. The EU focus gradually evolved towards enhancement of the implementation capacity of the applicant states (and aspirant applicants) and sought to mobilize their institutional and human capacity-building efforts. Thus, it inevitably focused on intensive cooperation with the government, which was identified as the leading partner for the development of political relations. Within the last two premembership stages, defined by the decisions of the Copenhagen (June 1993) and Luxemburg (December 1997) European Councils, the EU made explicit the link between effective governance and bureaucracy, and the European integration perspective of the applicant states. For Bulgaria this meant that by 2000 the institutional structure prescribed by the Europe Agreement was significantly extended. Under the pressure of EU requirements the Bulgarian government developed a whole new

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set of institutions that it hoped would manage all aspects of EU affairs. These included:

•

•

• • •

Structures for the preparation of the national position for the membership negotiation process: Inter-Ministerial Committee (members of which were the Heads of European Integration Units within each ministry); Directorate of European Integration and Relations with International Financial Institutions (Council of Ministers); Directorate of European Integration (Ministry of Foreign Affairs); Coordination structures: horizontal coordination within line ministries – Directorate of European Integration (Ministry of Foreign Affairs); Coordination Council which report on the draft positions to the Chief Negotiating Team; vertical coordination – Deputy Prime Minister responsible for integration in the structures of EU and NATO; Council of Ministers; Negotiation structures: Minister of Foreign Affairs, Minister (without portfolio) of European Integration – Chief Negotiator; Chief Negotiating Team; Structures for managing the political dialogue with the EU and its institutions: Directorate of European Integration (Ministry of Foreign Affairs), Mission of the Republic of Bulgaria to the European Communities; Policy implementation structures: European Integration Directorates were established as independent units within the specialized administrations of all ministries.

Additionally, adhering to the prescriptions of the pre-accession agreement the government launched a programme for both training and recruiting new expert staff. This programme has proved to be particularly efficient. The development of expertise on different aspects of European integration was partly funded by the state budget and it has often been referred to as an argument for the further redistribution of administrative resources. However, the European Commission was the main source of its financing. Currently, approximately 250 people employed in the central administration are considered to match the European expert profile.6 Importantly, however, this capacity-building programme was concentrated exclusively within the core areas of government and administration. The significant strengthening of institutional and human capacity within the executive branch stands in contrast to the development of the policy-making capacity of the National Assembly. The EU provided the parliament neither with an upgraded capacity-building programme, nor with significant resources for the development of such. The institutionalized political dialogue with the EU was kept at the stage of the Europe Agreement. Under its provisions, the Bulgaria– EU Joint Parliamentary Committee (JPC) was established in 1995. Until the start of the accession negotiations it was the only formal channel for communication and direct dialogue with the EU institutions open to parliamentarians in Bulgaria. Its relevance for policy-making in the later stages of Europeanization is quite disputable, however, since the JPCs mainly contact and cooperate with and through the European Parliament (EP) and have only an indirect impact on the accession process.7 The competences of the EP are still relatively restricted within the enlargement process and therefore its contacts with national parliaments in

Parliamentary involvement in the EU accession process 259 general have been less important than those of the executives within inter-ministerial settings.8 In the Bulgarian parliament EU affairs were considered to fall strictly within the foreign affairs domain and were handled by the Committee on Foreign and Integration Policy. Its membership largely overlapped with the composition of the Bulgarian representation in the JPC. Thus, within the parliament not more than 30 people were substantially involved in EU policy-making. As a rule the meetings of the committee were held behind closed doors which did not contribute to a broad plenary and public debate on the matter. The acknowledged priority of EU membership was not reflected in the institutional set up and rules of procedure of the parliament. Thus, it was made dependent on the information and institutional resources of the government from an early stage of the accession framework being instituted. Committee oversight The post-2000 institution-building process in the parliament was an adjustment period, which evolved in response to the objective pressures of the accession process, rather than as the result of an explicitly set pattern of policy accommodation. Hence, it was only after the decision of the Helsinki European Council to open formal negotiations with Bulgaria in 2000 that the parliament set up a standing Committee on European Integration. Before that, the political dialogue with the EU under the Trade and Cooperation Agreement (1989) and the Europe Agreement (1993) was channelled almost exclusively through the executive. Furthermore, as the parliament was not pressured with specific institutional requirements (in contrast to the government), for the creation of the necessary structures it utilized only its existing general provisions. The Committee on European Integration established by the 39th parliament is a standard standing committee. As such it assists the activities of the National Assembly and exercises on its behalf parliamentary control within a certain policy or issue area.9 More specifically, the committee reviews bills, draft resolutions, declarations, and addresses; observes the work of the Council of European Integration; conducts preliminary and successive control on the activities of the Bulgarian government; and hears ministers and other representatives of the executive in connection with the preparations and the results of the partners’ examinations by the European Commission.10 In 2005, with the membership perspective in mind, the committee’s powers were more specifically defined as to: ‘report to the National Assembly on the discharge of duties assigned to the Council of Ministers to provide preliminary information about its involvement in the development and adoption of EU acts’.11 The committee’s competences are thus crucial for the scope of parliamentary involvement in EU affairs and their legal definition provides for substantive participation in the matter. However, the functional capacity of the committee to implement these powers in practice has been negatively affected by several factors. First, the EU concentrated all its leverage and efforts on the development of coordination and cooperation structures within the executive and did not

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prescribe explicit requirements for the domestic coordination of policy among the different branches of government. Transposition and implementation of EU rules was left to domestic actors. In the context of the generally low level of cooperation among political actors in the former communist countries and the challenge to implement policy with scarce resources, the way this lacuna was utilized might have been predicted. The executive, being much the stronger actor in this asymmetrical relationship, assigned the support of the already existing Joint Parliamentary Committee to just a single unit of government. That unit was part of the Directorate of European Integration within the Ministry of Foreign Affairs and permanently employed six people, which is considerably less than the staff of the other sectors. Despite the fact that this was a multifunctional unit there were no formal rules for the distribution of work and the JPC issues were not assigned explicitly to different experts. There is evidence that parliamentary issues are dealt with on an ad hoc basis, without an institutionalized formal routine. 12 The weak coordination structure would not constitute a significant problem if the parliament had representatives in the main institutions dealing with the negotiations on the part of Bulgaria. The Council on European Integration defined the overall strategy and managed the development of policies related to the integration of Bulgaria in the structures of the EU.13 The Coordination Council supervised the work of the expert groups responsible for each of the negotiation chapters and reported to the Council on European Integration. The two councils were created with decrees issued by the government and in strictly legal terms constituted ‘administrative structures of the central executive power’. Hence, their membership was restricted to the individual organs of the executive power (prime minister and all ministers) and/or to senior state officials in their political or professional capacity (deputy-ministers, the political secretary of the Council of Ministers, heads of directorates within ministries, heads of missions abroad). Therefore, parliamentary representatives could participate in their meetings only in the capacity of observers. Thus, despite the importance of EU matters acknowledged at the level of discourse, formal procedures for parliamentary involvement were not truly established. A second important issue is that coordination between the government and the National Assembly relied on informal practices and on ad hoc initiatives. However, these were facilitated to some extent by the fact that as a rule the committee chair and the majority of is members are members of the party in power or of the dominant party within a governmental coalition. This weak formal cooperation mechanism in the case of Bulgaria is more or less representative for the other CEECs as well. In most of them the parliament is represented by the chair of the European Affairs Committee in the ministerial or inter-ministerial committees on European Integration, which usually serve as the main coordination body in the executive infrastructure. Nevertheless, only in Poland and Hungary has this taken on the form of a regular formally fixed routine, while in the other countries it is based on informal ad hoc contacts.14 A third important point here is that the executive has established a virtual monopoly on the information received from and forwarded to the institutional

Parliamentary involvement in the EU accession process 261 structures of the EU. The Department of ‘European Coordination’ within the Directorate for ‘Coordination of issues related to the European Union and International Financial Institutions’, is housed within the government and was created as part of the institutional enhancement required by the EU. It administers the unified information system supplying all the documents, materials and positions which are received from the Union. It further coordinates the process of informing the Commission in response to its inquiries regarding the pace of transposition and implementation of EU legal norms. Even though it is not legally constituted as such, in practice the ‘rapporteur’ position of the Directorate as regards the progress of the required reforms turns it into an important actor in its own right. This is of particular relevance to the parliament, since the Directorate is also responsible for monitoring the transposition of the acquis within the deadlines prescribed by the Union. Summing up the parliament suffers from institutional, numeric, informational and procedural deficits, which combined together inhibit its capacity to participate equally with the government in EU policy-making structures. The dynamics within the institution-building framework have a parallel in the development of human capacity or what we can call EU-related expertise among Bulgarian officials. In general, the EU did not identify national parliamentarians in the CEECs among the key state stakeholders to receive special training in respect of the accession process. In this respect as in many others expediency triumphed over the demands for legitimacy. The development of independent expert teams within the parliaments was simply not considered as the EU ratcheted up pressure upon the executive to enhance its managerial capacity. Consequently, the Bulgarian parliament did not develop a training strategy similar to the long-term programme of the government and the bureaucracy. Sporadic attempts have been made to socialize MPs into best practice, in particular in cooperation with prominent academic institutions. However, the progress towards building concentrated and specific policy expertise and language capacity has been extremely slow. In addition, the parliament has not developed strong independent administrative structures to deal with European issues. In accordance with the general framework of parliamentary procedures the MPs can hire expert advisers to consult in any specific issue area. The parliament budget covers any additional expenses (including expert salaries) limited to two-thirds of the base monthly remuneration received by the MPs.15 In other words, the monthly salary of any expert does not exceed the equivalent of two average monthly salaries in the economy. For some, this might support the argument advanced by Attila Ágh that in the CEECs being a government employee is considered to be financially more attractive than working for the parliament.16 In Bulgaria, the fixed expert salary rate is not lower than that of a civil servant employed in the central executive. The real issue, however, is that EU expertise has not been explicitly prioritized and ‘competes’ for funding with other policy areas. The distribution of the budget for additional expenses is based only on the size of the parliamentary groups, not on the pursuit of key strategic priorities. Once the group receives its

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gross funding it allocates it to different expenses, including such matters as assistance, consultation, expert opinion, offices and others (Rules and Procedures of the National Assembly, Appendix to the Rules: Financial Regulations, Art. 10). This lack of resource capacity underscores the considerable deficits in informational areas and institutional power which parliamentarians suffer. In this context the Committee on European Integration has not been able to use its institutional potential to participate comprehensively in the policy-making process. Its main non-legislative activities have been participation in the EU parliamentary network, formal presentations, and protocol meetings with representatives either of the member states or the EU institutions. Since September 2005 eighteen Bulgarian MPs have been elected to observe the work of the EP, and six of them are members of the European Integration Committee. Three Bulgarian representatives attend the biannual COSAC (Conference of Community and European Affairs Committees of Parliaments of the European Union) meetings. These European parliamentary forums provide important knowledge about existing and best parliamentary practices across Europe, political experience at the EU level and not inconsiderable networking opportunities. Those, however, will be more relevant and important after full membership is accomplished in 2007, rather than in the accession stage of negotiations. The European Integration Committee of the 39th National Assembly (2001-5) held nine meetings with representatives of the EU institutions and the member states of the Union. The meetings were conducted in the formal protocol format and were of informational rather than analytical value. Most of them were with representatives of the EP and member states’ parliaments. So far, the European Integration Committee of the 40th National Assembly (2005–) has held six meetings with member state ambassadors, representatives of the EP and the Head of the European Commission Delegation in Bulgaria. Though informative, those meetings are confined to the parliamentary network at national and/or European level, which as suggested above provides limited involvement in the actual policy-making process. A closer look at the activities of the European Integration Committee reveals that to a large extent it has been set priorities and dominated by governmental propositions and initiatives, which in most cases have been approved. Bearing in mind that the composition of the committee reflects the distribution of seats between the parties in the parliament this can be explained by the particularly strong party discipline to be found in Bulgaria. However, the decisions of any permanent committee, if it comes to an actual vote, are taken with consensus, which in some senses counteracts this tendency. When researching the parliamentary involvement in the political debate on EU affairs, it is also worth looking at the non-binding documents passed at the plenary sessions of the Assembly. Under the provisions of the constitution those are declarations and addresses.17 Declarations are the legal instrument used to express the political will and position of the assembly on specific issues. In its plenary sessions the 39th National Assembly passed 28 such declarations. Only four of them refer directly to European integration and EU affairs, however. And three of them

Parliamentary involvement in the EU accession process 263 reaffirm the common understanding that ‘full-fledged membership of the Republic of Bulgaria in the European Union is an unconditional political priority for the country’ and express the will of the assembly for successful finalization of the membership preparations. The last declaration referred specifically to the provisional closure of the negotiation chapters in 2004. In it the Assembly encouraged the government to speed up membership preparation and to inform the parliament regularly about the pace of implementation. So far, the 40th National Assembly has adopted six declarations, of which only one on the EU matters. It can be filed under the general rubric for the ‘successful finalization of the membership process’. In summary, the parliament has not engaged in substantive debate on the political dimensions of the integration project. The EU perspective, though publicly acknowledged as a strategic priority, has not been consistently present on the daily parliamentary agenda despite the increasingly close relationship with Brussels. Bulgaria’s considerable progress in preparing for membership has simply not been reflected in the institutional, financial, and procedural tasks allotted to the assembly – EU issues have mostly been dealt with under the standard rules of procedure of the parliament and within the pre-existing institutional template of executive–legislature relations. As a result, the political activities of the parliament can be classified as reactive to both government initiatives and to the decisions of the EU institutions. To a certain extent this came as an inevitable corrective to the inflated expectations concerning the role played by the National Assembly during the first years of transition. However, the government’s dominance of EU affairs has acquired qualitatively new scope beyond this compensatory development. The executive not only managed the daily routine of the negotiations (which fell within its immediate competences), but also dominated the whole accession process at the expense of the National Assembly’s competences.

Transposition of the acquis communautaire and the ‘facade legislature’ In her 2000 study, Ready for Europe, Barbara Nunberg assumed that the imperatives of the legal harmonization with the acquis communautaire would inevitably place the parliaments of the accession countries at the centre of the policymaking process.18 This view was based upon the understanding that any mechanism of legal harmonization with the EU would require legislative action, which, on its part, had been exclusively defined in the Eastern European constitutions as a constitutive power of parliaments within the new political structures. By definition this inference is true. However, her hypothesis is based on formal arguments and fails to comprehend, at least in the Bulgarian case, the possibility for purely procedural, not substantive, involvement of the National Assembly in the legislative process or to put it another way constitutional adaptation which would empower executive actors at the expense of parliamentarians. As it is argued in this section, the objective pressures of the legal approximation programme and narrow timeframes for implementation have further acted to the advantage of the

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executive branch. The analysis of institutional leverage on the legislative process shall proceed in two stages, reflecting the formal routine of the law making process. The pre-plenary stage The pre-plenary stage of the legislative process comprises the legislative initiative and the assessment of the compatibility of the draft act with the existing body of legislation. The transposition of the acquis communautaire, the content of which is by definition non-negotiable, clearly subsumes these two processes into a single proposition for amendments of the existing domestic legislation, based on its level of alignment with EU law. The latter, due to the sheer volume and scope of the acquis, is an extremely demanding process for the candidate country in terms of institutional, expert and language resources. As such, it further skewed the existing asymmetry in the foreign policy-making system in favour of executive dominance. Additionally, the pressures for fast transposition made the case stronger for centralized management of the process. At governmental level a number of specialized substructures were setup to deal comprehensively with the issues of legal approximation. Their functions can be subsumed to the following:

•

•

• •

Translation of the acquis communautaire: Centre for Translation and Editing (Council of Ministers) – provided binding translation of the EU law; stipulated on the final linguistic, terminological and legal editing of the texts; administered the process of ‘legalization’ of the final version of the texts; Regular screening of the compatibility of the acting Bulgarian legislation with the provisions of the acquis: Department of International Legal Cooperation and Legal Euro Integration, Directorate of International Legal Cooperation and International Legal Assistance (Ministry of Justice), Directorate ‘Legislative Council’ (Ministry of Justice); Regular screening of the compatibility of all draft normative acts of the executive with the provisions of the acquis: Directorate of European Integration and Relations with International Financial Institutions (Council of Ministers); Preparation of proposals for amendments of the acting legislation: Department of International Legal Cooperation and Legal Euro Integration, Directorate of International Legal Cooperation and International Legal Assistance (Ministry of Justice).

In 2004, between 40 and 50 people were permanently employed in these institutions and up to ten new positions were going to be created in the near future. As of May 2006, 74 experts were employed with ten new positions mooted. Hence, the functional capacity of the executive demonstrated a significant quantitative increase as the accession process proceeded. Certainly this helped accelerate the process of transposing and implementing those parts of the acquis where previously there had been stasis. In contrast, the specialized administration of the parliament developed only

Parliamentary involvement in the EU accession process 265 one sub-unit within EU affairs. The European Law Department is part of the Legislation and European Union Law Directorate. The Assembly also established a Consultative Legislation Council but its members are not parliamentary employees per se and participate only in their capacity as independent experts. The Council reviews draft bills and provides suggestions about the overall improvement of the legislative process. EC law is only one of the six legal areas in which the Council works. In fact, it has not been assigned a separate division but has been unified with the more general International Public and International Private Law problematique. As the accession process proceeded it became clear that the Bulgarian parliament could not exploit the existing coordination gap and did not acquire even a regular supervisory status in any of the structures dealing with legal integration. This made any post fact supervision of the executive almost impossible, since to be effective it requires the same adequate resource back up, which as noted is missing. The subsequent developments have been similar to the dynamics of the foreign policy-making process and point to clear government domination of the pre-plenary stage of legislation. The vast majority of the legislative initiatives have come either from the Bulgarian government or from separate ministries. However, this can be interpreted in the context of the generally stronger position of the government as the prime initiator of domestic legislation after the mid-1990s. The distinctive element is the generally ‘uncritical response’ of parliament to the propositions forwarded by government. The presumption that the acquis was non-negotiable significantly contributed to the failure of the European Integration Committee to engage in substantial critical review of the drafts and most of the government-initiated legislation passed with ease to further plenary hearing. In this respect the Bulgarian case is representative of the adaptation developments in the other accession countries where the attached government opinion on a draft pre-determined to a significant extent the final ruling on it.19 The plenary stage The impact of Europeanization has been even greater on the plenary stage of the legislation process. The pressures on the part of the EU for speedy transposition of the acquis have resulted in the adoption of a fast-track procedure for passing the related laws, which constitutes a deviation from the standard routine of two plenary readings.20 The former has been utilized as an informal tool and has not been regulated explicitly in a normative legal act. However, its implementation has at least been consistent. In practice, if a draft receives the consensus approval of all parliamentary groups represented in the Committee of European Integration it goes through only one reading, which in most of the cases is subsumed to the actual voting. It has been insisted that the Rules of Organization and Procedure do in fact provide for such a fast track procedure. Indeed, in accordance with the provisions of Article 67 (para. 2): ‘As an exception, the National Assembly may decide to take

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both votes at the same sitting. This provision shall be applicable only if during the bill’s consideration no amendments or supplements to the bill have been made.’ However, there are some points for consideration. First, this by definition ‘exceptional’ procedure has been consistently applied only to EU integration affairs. Second, the procedure refers only to the second vote and does not overrule the other formally required components of the submitted draft. In the case of EU legislation explanatory memoranda are to be submitted with each draft which should specify the relevant parts of EC law that require the respective regulation to be introduced. The records show that those usually present the objective of the regulation rather than its specific legal text compared with the existing Bulgarian law. Third, the fast track procedure still provides for ‘the bill’s consideration’. Normally, the consideration period preceding the first reading could extend to almost two months. This displays a pattern uniform to all Eastern European applicant countries, which had to ‘optimize’ the existing legislation procedures. In the case of Romania the government even adopted the acquis through special decrees ‘which require only retrospective approval by parliament’.21 Bearing in mind the minimalist dynamics of the pre-plenary stage of the European Integration Committee’s activities we can conclude that most of the adopted legislation was not subject to substantive deliberation prior to the plenary sessions. All governmental proposals for new and amended bills were passed by the parliament. Furthermore, the government dominated the legislative agenda regarding approximation with EC law. For the period 2001–5, for example, the European Integration Commission was the leading agent on 91 legislation drafts. Sixty-five of them were submitted by the government and 26 by MPs. So far, the 40th Assembly has adopted 49 bills related to the requirements for approximation with the acquis. Twenty-nine of them were governmental proposals. What follows is that the imperatives of legal harmonization with EU rules did require legislative action. However, the involvement of the parliament in all stages of the legislative process has been largely procedural and can be considered a minimal input into the formal provision of measures. In many respects it has acted as a ‘rubber stamp’ for legislation initiated elsewhere but which was critical to Bulgaria’s progress in meeting EU rules. Thus, it can satisfy only a minimalist interpretation of the formal legislative competences of the National Assembly in the context of parliamentary democracy. The parliament failed to engage in substantial deliberation and overview of the legal texts forwarded to it and this contributed significantly to the weakening of its institutional position vis-à-vis the executive, which controlled the pace and the actual content of the legislation process within the limits of acquis transposition. Availability and efficiency of control mechanisms As in the other applicant countries, no new provisions were introduced at the beginning of the accession process to enhance the control capacity of the parliament vis-à-vis the executive. This may be due to the fact that the incorporation of new regulations entails the slow and complicated procedure for amendment of

Parliamentary involvement in the EU accession process 267 the constitution and the normative acts regulating the everyday work of the parliament. However, it is equally clear that with a commitment to real legitimacy changes could have been implemented in informal ways. The example offered in the previous section of the plenary stage of the legislative process proves that informal practices are useful tools for adaptation to the accession matrix. But, as we have seen, they were used only towards minimization of the parliament’s powers. Subsequently, in 2005, the Bulgarian constitution was amended with the intention of providing for more substantive parliamentary control on EU issues. In accordance with the new provisions the government shall inform the National Assembly on issues concerning the obligations of Bulgaria resulting from its EU membership.22 It shall also inform the National Assembly in advance on the drafting and adoption of EU instruments, and shall provide a detailed account of its actions.23 The constitutional amendments reflect the existing plenary consensus on the procedural adaptation to future membership. The draft amendments were proposed by a large group of 84 MPs and were not challenged during the preliminary discussions within the Committee of European Integration. Subsequently, the parliamentarians present adopted them with unanimity at the respective plenary session. Those records display a certain understanding of the impact of integration on executive–legislative relations and its future direction. However, it has had little relevance to the accession process and the common concern has centred on the post-membership period. The new provisions stipulate parliamentary scrutiny to be exercised only subsequent to EU membership being realized and did not enhance the control mechanisms of the parliament during the remaining accession stage. In the explanatory memorandum attached to the draft its authors pointed explicitly to future membership as the main motive for the amendment. It refered directly to the representation of Bulgaria as a member state in the EU institutions and the future participation of the Bulgarian government in its legislative process. During the pre-accession period, parliamentary control of the management of EU affairs was executed through the existing standard mechanisms. In accordance with those provisions any MP may address questions and enquiries to the prime minister, any of the deputy prime ministers, or any of the ministers. The questions usually refer to specific matters of a topical nature and public interest. The enquiries have a more general nature and concern the main aspects of the policies and activities of the government. The National Assembly may also conduct hearings either in its plenary sessions or at permanent committee meetings. The hearings are to be on matters concerning the state or public interest and may take the form of a wider discussion.24 Hence, the formal routine for parliamentary control exists. The issue is whether the parliament manages to practise it efficiently into practice with reference to EU matters. During 2003–5 the European Integration Committee gave six hearings to the Minister of Foreign Affairs and the Minister of European Integration. None of those meetings was entirely allocated to the hearing and as a rule general legislative tasks were present on the agenda. In most cases the purposes of their presentations

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was to inform, rather than to account. The ministers presented general information on the pace of negotiations and the legislative agenda of the government for the respective parliamentary year. It has to be kept in mind that this was the period during which all accession chapters were negotiated and provisionally closed. However, the course and content of the negotiations was discussed not more than once and then the MPs were presented with the final version of the accession treaty. The European Integration Committee of the 40th National Assembly has conducted seven hearings. During five of them the MPs received post facto information about the activities of the government. In only two cases, details about the membership preparations in specific areas were presented. The control activities of the last two European Integration Committees display a common pattern, characterized by three main features. First, the committee could not impose ex ante control on government officials and relied on ex post information. Preliminary discussions on the European policy course were in fact the exception rather than the rule. Second, on a number of occasions the government has declared the information exchanged with EU representatives confidential and refused to disclose details until the official opinion of the Commission was made public. Those cases are mainly related to the Justice and Home Affairs chapter under which the progress of the country was often quoted as unsatisfactory. The Commission’s Regular Reports dealing with Bulgaria continually pointed to severe shortcomings in the areas of private and public corruption, inadequate controls on the judiciary and ongoing ‘gaps’ in governmental oversight of legislative transposition and implementation. It has to be stressed that the government committed itself to engage positively with the committee on these issues. However, the available plenary and committee records do not display evidence of such. Third, in many cases the acknowledged purpose of the government’s presentations at the committee meetings was to set the content and the time frame of the parliamentary legislative agenda in accordance with the required legal approximation. Thus, in the context of this asymmetrical relationship, the activities of the European Integration Committee have been confined to downloading of government proposals. The control activities within the plenary sessions display the same pattern: neither the number nor the substance of parliamentary control questions match the importance assigned to EU membership requirements. During the first session of the 40th National Assembly the total number of the plenary questions and enquiries was 379. Only nine of them referred to the accession process. The ration for the second session of the parliament is very similar: only 21 out of 530 questions and enquiries related to the membership perspective. For the last plenary year (2005–6) the National Assembly conducted only one plenary hearing on EU issues. We can conclude that neither the structures, nor the individual MPs in the parliament are in a position to demand regular and substantive reports from the Bulgarian government. Since the absence of formal instruments for that is not an issue, it can be assigned to the lack of general comprehension of the accession process, whose institutional and expert aspects have already been defined. The parliament simply does not have the technical and resource capacity to take decisions that can implement in practice its normative controlling role.

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Conclusions The focus on the part of the EU on the strengthening of the institutions and policy expertise of the executive provided the government with the functional capacity to sufficiently dominate the entire domestic arrangements surrounding Bulgaria’s accession preparations. This came at the expense of the practical dimensions of the parliament’s formal competences not only to formulate, but also to participate substantively in the making of foreign policy. The functional deficiencies and subsequent marginalization of the National Assembly gradually degraded its competences as a major locus of the legislative process. The latter was dominated by the government, which had the resources and managerial capacity to respond to EU pressures for fast transposition and implementation of the acquis. The accumulation of these factors undermined the overall institutional position of the legislature and proved decisive for its lack of engagement with the EU membership process, which concluded with accession on 1 January 2007. This further provided the government with the opportunity to avoid critical and substantive scrutiny of its decision-making systems and legislative acts. Overall, it seems clear that the functional requirements of the accession process obstructed to a significant degree the efficient implementation of the formal constitutive powers of the National Assembly. Additionally and disturbingly they provided a very strong argument for the routinization of the existing and ad hoc informal patterns of institutional interaction in favour of executive dominance. The formal aspect of the Europeanization effects refers to the outlined gap between the formal legal and actual political powers of the parliament. From a constitutional and legitimacy perspective this points to the conclusion of a gradual but increasingly important erosion of legitimacy of the national policy-making process. Its tangible dimension however, goes beyond mere theoretical concerns. The marginalization of the parliament has had two main effects. First, the National Assembly could not play the necessary corrective role regarding the governmental legislative agenda. As a result, the harmonization with the acquis resulted in peculiar legal decisions, which had to be subsequently redrafted and sometimes introduced chaos into the legal system. Second, the parliament has struggled to perform one of its most important functions, i.e. to articulate and upload public interests during the negotiation process. Otherwise, it could have successfully exerted pressure on the executive on crucial issues such as nuclear energy, the future arable land regime, and the free movement of labour. The developments in the particular case of Bulgaria parallel those in quite a number of other CEECs and reflect the existing democratic deficit problems within the EU, where the executive elites have been prominent in determining the policy process and have been aided in claiming important power within domestic political systems from the democratically elected representatives of the citizenry. The empirical findings of the chapter are in line with the theoretical predicaments of the deparliamentarization hypothesis. The combination of a relatively weak parliamentary tradition and the dynamics of the accession process have made the executive–legislative relations in the case of Bulgaria particularly susceptive to the Europeanization effects. However, the analytical and normative

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focus of the deparliamentarization studies refers to the post-accession adaptation of national parliaments. The common practice and literature findings point to the conclusion that in the context of full-fledged membership the questions of national sovereignty and parliamentary legitimacy become particularly tangible. In this sense, research into the future parliamentary involvement in EU affairs is still open. The accession experience does not necessarily provide the template for the form which executive–legislative relations may take. It may well prove the exception rather than the rule. Strengthening of the parliamentary involvement of the member states has been present on the political agenda and in the institutional practice at national and European level. In compliance with the above tendencies the Bulgarian parliament researched the existing models of parliamentary scrutiny and has already adopted some basic legal texts towards the re-construction of its own model. However, its capacity to effectively implement its constitutional powers regarding European integration might be limited by two factors. First, the circumstances of the accession have changed gradually but substantially the national polity opportunity structures. The Bulgarian parliament will find it difficult to regain adequate institutional and informational resources. Second, the parliamentary participation so far has not cultivated the level of awareness necessary for addressing the above problem. As Bulgaria has now acceded to the EU these issues may well take on a new significance. What is unquestionable is that they will not go away.

Notes 1 2 3 4 5

6 7

8 9 10 11 12 13 14

Constitution of the Republic of Bulgaria, Art. 1(1), Art. 8. Not to be confused with the EU’s Council of Ministers. Constitution of the Republic of Bulgaria 1991, Art. 105(1). Constitution of the Republic of Bulgaria 1991, Art. 1(1), Art. 62, Art. 84, Art. 85. David M. Olson (1997) ‘Paradoxes of institutional development: the new democratic parliaments in Central Europe’, International Political Science Review, 18, 4: 401; see also Attila Ágh (1997) ‘Parliaments as policy-making bodies in East Central Europe: the case of Hungary’, International Political Science Review, 18: 417. Interviews in the Ministry of Foreign Affairs, Directorate of European Integration, 11 July 2004, 4 September 2005. On the role of JPCs within the enlargement process see John O’Brennan (2006) ‘The European Parliament in the enlargement process’, in John O’Brennan, The Eastern Enlargement of the European Union (Abingdon: Routledge), pp. 95–112. Attila Ágh (1999) ‘The Hungarian Parliament and the EU accession in East Central European context’, www.oneworld.at/ngo-conference/discussion/2parsum.htm. Rules of Organisation and Procedure of the National Assembly, Art. 17 (paras. 1 and 2). Committee on European Integration, Internal Rules of Procedure, Art. 2. Rules of Organisation and Procedure of the National Assembly, Art. 17 (para. 3). Interview in the Ministry of Foreign Affairs, Directorate of European Integration, 9 July 2004. Decree 145, Council of Ministers. Tony Verheijn (1998) ‘The management of EU affairs in the candidate countries: inventory of the current state of affairs’, Sigma Papers: Preparing Public Administrations for the European Administrative Space, 23: 36; Barbara Nunberg (2000) Ready for Europe: Public Administration Reform and European Union Accession in Central and Eastern Europe (Washington, DC: World Bank).

Parliamentary involvement in the EU accession process 271 15 Rules and Procedures of the National Assembly, Appendix to the Rules: Financial Regulations, Art. 10. 16 Atilla Ágh, op.cit. 17 Constitution of the Republic of Bulgaria, Art. 86 (1; 2). 18 Barbara Nunberg, op. cit., p. 313. 19 Wojciech Sadurski (2004) ‘Accession democracy divided: the impact of the EU enlargement upon democracy in the new member states of Central and Eastern Europe’, European Law Journal, 10, 4: 384. 20 For the voting procedure see Rules of Organization and Procedure of the National Assembly, Art. 67 (para. 1). 21 Sadurski , op. cit., p. 384. 22 Constitution of the Republic of Bulgaria 2005, Art.105(4). 23 Constitution of the Republic of Bulgaria 2005, Art.105(3). 24 Constitution of the Republic of Bulgaria, Art. 77(1), Art. 80(1), Art. 94.

15 Conclusion National parliaments gradually learning to play the European game? John O’Brennan and Tapio Raunio

According to the standard thesis of deparliamentarization outlined in the introductory chapter of this volume, national parliaments have been the ‘victims’ or ‘losers’ of European integration. National governments, and not backbench parliamentarians, represent the member states at the European Union (EU) level, and hence the latter are always structurally disadvantaged vis-à-vis the executive branch. Information is the key factor in these arguments, as the national MPs can practically never have the same level of policy expertise about the issues as representatives of the government. The existing literature has thus painted a fairly bleak picture of the impact of the EU on domestic legislatures and the consequent disempowerment of parliaments. While not exactly disconfirming the deparliamentarization thesis, the contributions included in this volume certainly force us to reconsider or moderate such arguments about the empowerment of the executive at the expense of parliaments. National parliaments clearly have become more active in European affairs, and subject their governments to tighter scrutiny in EU issues than previously. This finding is not very surprising. After all, the process of European integration has taken major steps or leaps forward since the early 1990s, and hence the EU has simply become a much more powerful actor whose policy competence extends now to basically all policy sectors. At the same time the EU has become much more politicized (and, with or without the ratification of the Constitutional Treaty, constitutionalized also), with integration matters occupying a more central role in domestic political discourses. Hence national MPs and their political parties need to pay more attention to politics at the European level. In parallel with these domestic developments, the volume also shows that there is increasing consensus and constitutional regulation about the collective role of national legislatures. The 1990s and first years of the new millennium saw the establishment and consolidation of interparliamentary cooperation, and a number of initiatives about how to further strengthen the presence of national parliaments in the EU’s policy process. However, this phase is now basically over, and hence we have a better understanding of the opportunities and limits facing interparliamentary activities. This concluding chapter discusses the theoretical and practical significance of these main findings. The next section examines the implications of tighter

Conclusion 273 domestic scrutiny of national governments, arguing that the importance of the EU for national MPs should nevertheless not be exaggerated. Towards the end of that section we shift our attention to the European level, discussing the benefits and disadvantages of various forms of interparliamentary cooperation. In the final section we then map out some major challenges for research on national parliaments in Europe, focusing on the increasing use of the Open Method of Coordination (OMC) and the interdependence between national and European policy agendas, and stressing the need to move beyond studies that examine the organizational arrangements and legal norms of parliamentary scrutiny of EU matters.

Institutional convergence and tighter scrutiny The contributions in this volume clearly testify that national parliaments are investing more resources in European matters than before. This gradual fight back has not taken place overnight, but the early 1990s and the signing of the Maastricht Treaty can clearly be seen as a turning point. Since then the parliaments review and process more EU documents, the powers and functions of the European Affairs Committees (EAC) have been upgraded, and, in general, national MPs subject the government ministers to tighter scrutiny in European affairs. The findings in this volume thus corroborate the pattern that was clearly visible already in previous publications – as the EU becomes more important through the deepening of European integration, domestic legislatures pay more attention to what goes on in the EU institutions. 1 The chapter by Conlan showed that the Irish parliament, which until then had adopted a rather passive approach towards EU level policy-making, redesigned its scrutiny system in the first years of the twenty-first century. However, it is still too early to draw any definitive conclusions about the capacity of the Oireachtas to influence governmental EU policy, and much depends on the political will of the Irish deputies to use the new legal instruments at their disposal. In his analysis of the parliaments of the four Mediterranean EU countries, usually categorized as laggards in terms of their engagement in European affairs, Magone examined how the Italian and Portuguese legislatures have since the mid-1990s invested considerably more resources in EU matters. The Spanish and Greek parliaments remain, however, very weak vis-à-vis their governments in European matters, with MPs in these two countries in general showing relatively little interest in such questions. The other chapters on the ‘old’ member states illustrate similar developments. Hegeland showed that particularly the Danish and Swedish legislatures have evaluated the effectiveness of their scrutiny systems, and both the Swedish Riksdag and the Danish Folketing are attempting to make specialized committees more involved in the processing of EU issues. From the analysis by Sprungk of the German and French scrutiny models, we can see that especially the French parliament has also introduced constitutional and procedural changes that improve its capacity to control the government in EU issues. Finally, as Cygan showed, in the

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UK both houses of parliament have consistently reviewed the existing scrutiny mechanisms. The chapters on the ‘new’ member states prove that the countries which joined the EU in 2004 have already from the start of their respective membership implemented fairly comprehensive scrutiny mechanisms.2 Here the parliaments benefited from their pre-accession involvement in interparliamentary cooperation and from studying the scrutiny systems in place in the old member states. Vehar discussed how the Slovene parliament basically by and large copied the Finnish model, while Gyo´´ri and ˜azowski in their chapters also indicated that the Hungarian and Polish legislatures knew the benefits and weaknesses of the existing scrutiny systems. Particularly noteworthy in these new member states is the role accorded to specialized committees, which seems to be on average stronger than in the old member states. However, at the same time the country chapters on Hungary, Poland, and Slovenia clearly show that the engagement of the sectorspecific committees is yet to become institutionalized. Moreover, the new member states are still undergoing a period of adjustment, and hence it is probable that the scrutiny systems will become more effective once the national MPs are more familiar with the rhythm and rules of the EU’s policy process. This also implies that the Bulgarian parliament, which according to Stoykova has during membership negotiations been effectively sidelined, is likely to redesign its scrutiny system either on the eve of accession to the EU or shortly after Bulgaria has joined the Union. When designing new scrutiny systems (new member states), or choosing how to strengthen existing mechanisms of control (old member countries), the national MPs and parliamentary civil servants have learned ‘best practices’ from each other. And indeed, we can see substantial institutional convergence towards a common model. All national parliaments have an EAC, the main function of which is to coordinate parliamentary scrutiny of the government in EU matters. To be sure, the exact roles and legal powers of these committees do vary, but this should not hide the plain fact that the EACs perform broadly similar functions throughout the Union.3 Carina Sprungk’s chapter demonstrated the extraordinary degree of convergence already evident in the work of the French Assembleé National’s DUE and the Bundestag’s EAC, one element of a broader trend of convergence in parliamentary engagement with EU affairs in France and Germany. The status of these EU committees does, however, seem to fluctuate significantly between the member states. For example, while Hegeland showed in his chapter that in the three Nordic countries the EAC is a fairly prestigious committee, according to Magone the situation is pretty much the opposite in the Mediterranean region. Furthermore, specialized committees have gradually become more involved in processing EU matters. A higher share of national parliaments decentralizes scrutiny of European affairs downwards to these committees, with the goal of benefiting from the policy expertise of the MPs. Nonetheless, as several of the chapters in this volume testify, in many countries this involvement of the committees is more formal than real. For example, Hegeland discussed how the Danish and Swedish legislatures have repeatedly tried to make committees more active in European questions, but with limited success. Hence it appears that the only

Conclusion 275 way to guarantee the regular and active involvement of specialized committees is to force them legally to both process and report on EU issues as happens in Finland. A third common feature is the limited role of EU matters in plenary debates. Here convergence is not explained by organizational choices, but mainly by the strategic interests of political parties. After all, there is no shortage of research confirming the disruptive impact of integration matters within parties.4 Expert surveys and public opinion data indicate that across the EU the parties are ideologically less cohesive on integration than in traditional left-right issues.5 Moreover, within parties the elected representatives are considerably more supportive of integration than their voters.6 Hence party leaders have an electoral incentive to marginalize EU issues and focus on domestic socio-economic matters in order to avoid irritating their voters. Avoiding plenary debates on European integration should thus be seen as a logical response from political parties whose main goal is electoral success. The strategy of playing the EU card is risky business, and its success depends on the unity of the parties over European integration in addition to other aspects of underlying political culture which help determine attitudes to ‘Europe’. Moreover, governments and the main parties in several EU countries continue to ‘depoliticize’ the European issue through cross-party cooperation behind closed doors in the EAC with the aim of manufacturing consensus in national integration policy.7 Such consensus-building has arguably been more pronounced in smaller member states, based on the logic that national unity and policy consistency increase a small state’s negotiating power in EU institutions.8 The chapter by Hegeland showed that this logic dominates proceedings in the Nordic countries – where European matters fall somewhere between domestic and foreign policy matters in terms of the openness of the decision-making procedures.9 While the political elites may defend such consensus-building behind closed doors with the need to further national interests and to allow the confidential exchange of views between the government and the parliament, this mechanism serves also the strategic interests of the parties. National parliaments have without any doubt learned how to play the European game better, with more active scrutiny of the government in EU matters the reality in basically all member states. However, the big question remains still largely unanswered – namely, to what extent do parliaments really influence government behaviour? And furthermore, what level of parliamentary scrutiny in EU affairs can we realistically expect? Attempting to answer the first question is very difficult, as legislative scholars have always faced great difficulties in trying to measure or assess the parliament’s influence vis-à-vis the executive. The final section of this chapter will suggest ways of meeting this challenge. But the crucial point is the level of parliamentary scrutiny of EU affairs: can we expect tighter scrutiny or not? Previous literature on explaining cross-national variation in the level of scrutiny of EU matters has shown that the variation is primarily explained by two factors: the role of the parliament in the domestic political system, and public and party opinion on European integration. According to the first variable, the

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executive–legislature relationship, the parliament controls the government to the same extent in European matters as it does in the context of domestic legislation (a kind of neofunctionalist ‘spill-over’ effect, if you will). Similarly the contentiousness or salience of the European dimension is arguably important: in countries where integration matters produce divisions within both political parties and the general public the tendency is toward adopting tighter scrutiny mechanisms. In a key contribution to the literature Saalfeld uses these factors to argue that the level of scrutiny we presently have – which by all accounts is not that impressive – is not very surprising and is in line with theoretical expectations. That is, national parliaments ‘delegate’ rather than ‘abdicate’ EU matters to the governments10 – in a similar way in which they delegate policy-making authority to governments and their agencies in electorally less salient matters. If we accept this basic line of argument, then we really have no reason to expect that national MPs would devote more of their time to EU matters in the future. First, in terms of re-election, focusing on European matters in parliamentary work is hardly an optimal strategy. EU policy may be important for the electoral districts (e.g. in terms of attracting regional policy funds), but not necessarily for the voters who still base their voting choices primarily on ‘domestic’ issues – taxation, health care, education, level of social services and so on.11 Second, as argued above, political parties are not very likely to push EU matters to the agenda of the plenary sessions. Hence the debating function of parliaments will remain unfulfilled in EU matters or at least very limited. And third, even if the Constitutional Treaty were to enter into force, it would not mean any major transfers of power to the European level. Hence the policy reach of the Union, and the size of its budget, will stay more or less at the same level in the near future. This means that those issues that are salient in terms of voting behaviour in national elections will continue to be decided at the national level. In sum, these very basic considerations need to be taken into account when assessing the level of involvement by national MPs in European matters. The findings in this section have so far focused on the national level, but the contributions in this volume point also towards interesting developments concerning the collective role of national parliaments at the European level. The period from the early 1990s to the start of the Convention saw a plethora of proposals about how to strengthen the status of national parliaments in the EU’s policy process. The majority of the proposals advocating the establishment of a new EU collective organ of national MPs were made by British and French politicians, whose views largely represented a combination of Euroscepticism and the desire to safeguard the powers of national parliaments and thereby to inject democracy and legitimacy to European integration. According to most such proposals the organ of national MPs would either have been a non-legislative body, convening to debate the state of the Union, or it would have focused on monitoring compliance with the principle of subsidiarity and on discussing the distribution of powers between the EU and the member states. But, as the chapter by Raunio showed, support for such proposals was always thin, with most member states against the creation of (yet another) institution that would

Conclusion 277 have made the EU’s political system even more complicated and less transparent to the public. The proceedings of the Working Group on the role of national parliaments in the Convention illustrated well the lack of political will for further institutionalizing interparliamentary cooperation. The Working Group reached broad consensus on both sticking to present patterns of interparliamentary networking and on improving the capacity of individual national parliaments to control their governments in EU matters through giving them better access to information. The new ‘early warning system’ included in the Constitutional Treaty, where domestic parliaments have the opportunity to review the Commission’s legislative proposals and judge whether they are in compliance with the subsidiarity principle, will necessitate better exchange of information between national parliaments. This is likely to happen primarily through the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC), the functions and powers of which are unlikely to change in the near future. Examining the value of COSAC, Bengtson argued that even in the context of its consultative role, national deputies seem to find the exchange of ideas and sharing of policy expertise worthwhile. And, as the country chapters on the ‘new’ member states showed, the forum provided by COSAC was indeed highly useful when designing the parliamentary scrutiny systems for EU matters. This suggests that there is significant potential for cross-national socialization and internalization of current best practice across a range of issues (albeit on a limited but nevertheless accelerated scale). The greater availability of information on what individual EACs, specialized committees, and parliaments in general actually do in an EU context now transfers easily across territorial boundaries. Increasingly EACs and specialized committees are making use of the Internet to publicize their work in extensive detail. National MPs, if they have the time and are sufficiently interested can access such information and take advantage of existing parliamentary networks to learn more about current practices in different jurisdictions. Thus, the potential for a more genuinely interparliamentary (though far from universal) harmonization of institutional practice is certainly apparent. The contributions in this volume and in previous publications indicate that there is much variation in the interest shown by national parliaments in forging links with the European Parliament (EP) or involving Members of the European Parliament (MEPs) in their work.12 While ties between the EP and the national legislatures have become more institutionalized and regular over the years,13 there is little reason to expect that such contacts would intensify to any great extent in the foreseeable future. For one thing the EP has always trod warily where proposals concerning a new institutional role for national parliaments are at issue. The prospect of intra-institutional rivalry or even parliamentary turf battles simply does not appeal, notwithstanding the arguments about legitimacy and wider representation. The calendars of both sets of parliamentarians are also quite full, and hence finding time for such trips to Brussels is no easy task. Timetable problems are indeed one of the reasons why most national parliaments and their committees seldom invite MEPs to their meetings.14 Moreover, while particularly bilateral meetings between the EP’s committees and their counterparts in domestic parliaments may facilitate the sharing of expertise, national

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MPs can arguably get similar information much more easily in their domestic settings. Especially MPs of the governing parties can always benefit from links with the executive branch, and both government and opposition parties can involve MEPs in the work of party organs. Indeed, national parties throughout the Union make now more active use of their MEPs, and these intra-party links are likely to remain the main channel for contacts between national parliaments and the EP.15 To summarize, the findings of the volume reviewed in this section clearly point towards stronger involvement of national parliaments. This applies particularly to the national level, with most legislatures subjecting their governments to tighter scrutiny in EU matters than before. However, it is equally important to warn against too optimistic assessments of the strength of parliamentary scrutiny. European matters are simply not salient enough for most national deputies in order to facilitate a major qualitative leap in the level of control. Seen from the perspective of an average MP, engaging in EU issues is hardly very rewarding either in terms of re-election or of influencing public policy. Turning to the collective role, we can safely state that the current forms and level of interparliamentary cooperation are likely to prevail also in the future. Following the flurry of proposals concerning the collective organ of national MPs, and their subsequent rejection by the Convention and the national governments, we now have a much clearer picture of the limits and possibilities facing contacts between parliaments in modern Europe.

Mapping out future challenges This concluding chapter has so far focused on analysing past developments and current experiences in parliamentary scrutiny of EU matters. This final section looks ahead, mapping out some future challenges for both the parliaments themselves and for academic research. We shall first examine what the increasing use of OMC and other forms of intergovernmental policy coordination imply for national parliaments. Then we examine the links between enlargement, Europeanization, and the position of new member state parliaments, and discuss the agenda for future research and reconsider how national MPs can contribute more effectively to the EU’s policy process. The challenge posed by OMC deserves to be taken seriously.16 While intergovernmental policy coordination has been a feature of the EU’s decision-making system throughout the history of integration, such informal policy coordination has become much more prominent since the early 1990s. The European Employment Strategy (EES) adopted at the Essen European Council in 1994 and the coordination of national economic policies agreed in the Maastricht Treaty extended this coordination to two highly salient issue areas of domestic politics. And, the Open Method of Coordination became officially a part of EU jargon at the Lisbon European Council in 2000. OMC has four main components: 1

fixed guidelines set for the EU, with short-, medium-, and long-term goals;

Conclusion 279 2 3 4

quantitative and qualitative indicators and benchmarks; European guidelines translated into national and regional policies and targets; and periodic monitoring, evaluation and peer review, organized as a mutual learning process.

In recent years OMC (together with other forms of policy coordination) has been applied to a broad range of policies, including employment, social policy, environment, taxation, immigration, research, transport, working time, social protection, education, social infrastructure, regional cohesion and social inclusion. The increasing use of OMC and other forms of informal, non-binding, primarily intergovernmental ‘soft law’ instruments needs to be understood in the context of the sensitive question of dividing competencies between the EU and its member states. European integration has reached the stage where the core areas of the welfare state, such as social policy, employment, and education are starting to be affected. In these policy areas (which are both money-intensive and touch core areas of national sovereignty) it is very difficult to build the needed consensus among national governments for transferring policy-making authority to the European level – hence the resort to intergovernmental policy coordination. The national governments want, on the one hand, to achieve highly-valued policy objectives, such as reducing unemployment and making their economies more competitive, while on the other hand, they are not willing to cede formal sovereignty to the Union. The Commission meanwhile sees these new modes of governance as a way to expand the EU’s competence in the face of resistance from the national governments. The literature on OMC and other forms of soft law instruments – or ‘new modes of governance’ – is already quite extensive.17 This literature has so far produced two main findings. First, it is still too early to make any definitive assessments of the success of OMC. Nevertheless, while the impact of OMC varies greatly between policy areas, scholars usually point out that, unlike top-down supranational legislation, it is flexible and (supposedly) respects subsidiarity and national autonomy. The down-side of this flexibility and non-binding nature of outputs is that the EU has few if any means to make the national governments follow its recommendations. However, the more important findings in terms of national parliaments are those concerning the input of various ‘stakeholders’ in the process. OMC has strengthened the leadership role of the Council and the European Council, intruding thus on the Commission’s right of monopoly. Yet, on the other hand, the Commission has a central role to play through its role as the institution setting objectives and issuing guidelines and recommendations to national governments.18 The EP is effectively sidelined, as it is merely kept informed or consulted of OMC processes. At the national level OMC seems to be the preserve of civil servants that possess expertise on the issues. At this point it is worth comparing the position of national parliaments in two modes of EU governance – the traditional ‘Community method’ of producing supranational legislation and the OMC mode.19 When it comes to agenda setting

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and proposal power, national parliaments are weak actors in both types of governance. In supranational legislation the Commission basically has the monopoly of initiative, but obviously its initiatives are largely based on instructions from the Council and the European Council. The OMC is much more a tool to be used collectively by the member states, but here too the EU institutions – mainly the Commission and the Council depending on the policy question – set the agenda and coordinate subsequent actions. In supranational legislation the formal competence belongs to the EU, whereas the OMC is primarily used in policy areas where the Union has no access to binding legislation. This division of competence impacts also on the Council decision rule. Most supranational legislation is passed nowadays in the Council by qualified majority voting (QMV), but in OMC processes issues are decided by unanimity. Thus, domestic legislatures are in a stronger position, as national governments cannot be outvoted in the Council, and hence national parliaments can, at least theoretically, veto decisions they disagree with.20 Turning to the domestic level, civil servants are central actors in both types of governance. However, in the OMC their role appears to have been far more influential, with much less guidance and instructions from members of government. As the chapters in this volume show, most national legislatures have become more actively involved in EU issues in recent years. The (so far relatively scarce) evidence from the OMC, in turn, shows that national parliaments have not scrutinized OMC documents in the same way as they process EU laws (see below). The formal information rights of national parliaments are also stronger in supranational legislation, as they receive the legislative initiatives from their own government and also from the Commission. As OMC documents are non-legislative items, the information rights of national legislatures are generally weaker. Importantly, if the government is not obliged to send the documents to the parliaments, then it is up to the national MPs to ask for such documents (provided they are aware of their existence). The role of the parliamentary opposition is quite different in the two types of governance. In supranational legislation the opposition of course attacks the government, but this criticism is modified by two factors. First, as discussed by Hegeland in the chapter on the Nordic EU countries, national integration policy is often based on broad parliamentary consensus, with the opposition also involved in forming national positions. Moreover, were the opposition to attack the government, the prime minister might blame the opposition parties for rocking the boat and jeopardizing the success of the government (and thereby the ‘national interest’) in EU negotiations.21 But in the OMC the opposition can use the information generated by cross-national comparisons to criticize the government for inefficiency and policy failures. This brief comparison reveals that national parliaments could in fact in many ways benefit from the use of OMC, not least because it does not force the domestic legislatures to adopt legislation. However, the available evidence indicates that national parliaments have failed to make an impact in OMC. Examining policy coordination in employment and social inclusion strategies, the country chapters

Conclusion 281 in the volume edited by Zeitlin et al. testify that the various OMC documents, particularly National Action Plans (NAP), largely escaped parliamentary scrutiny or plenary debates.22 To be sure, parliaments were often informed about NAPs, but mainly after they had already been produced and sent off to Brussels. In some exceptional cases national MPs did demand more information, and there were also some examples of opposition parties using the EU’s recommendations to support their own claims.23 Examining also employment and pensions policies, de la Porte and Nanz note that these processes largely escaped parliamentary scrutiny.24 National legislators thus have very little direct involvement in the OMC, playing at best a passive role by being informed of developments.25 While there are no other comparative studies examining the contribution of NPs, it is noteworthy that domestic legislatures are hardly even mentioned in other publications on the OMC. There are arguably three main reasons why national parliaments have failed to make an impact under OMC. First, the whole process is by its very nature intergovernmental, with civil servants primarily responsible for drafting national programmes and presenting them in Brussels.26 National MPs are informed of these preparations, but far too often this happens much too late. Second, national MPs may find it hard to follow OMC processes. Unlike normal EU legislation, OMC and other forms of policy coordination do not often have any fixed deadlines or even rules guiding the behaviour of the various actors. Given the intergovernmental or informal nature of OMC, there is also (at least in some national parliaments) procedural ambiguity about how to process these things in parliament and domestically in general. Hence it might be that national parliaments have simply not learned yet how to contribute to OMC issues and that their contribution will become stronger over time, just as they have gradually learned to play the game with supranational deliberation and the legislation which flows from such. And third, it appears that the actual impact of OMC and other forms of informal policy coordination has so far been relatively modest, if not even inconsequential, in many policy areas. As a result, national parliamentarians have not found it worthwhile to spend their precious time on scrutinizing such processes. Despite the relatively limited policy impact of OMC, its extended application means that national parliaments cannot simply ignore such processes. Here it is important to emphasize the difference between OMC and supranational legislation. The negotiations that form part of OMC are always carried out behind closed doors, and the legal rules about information rights that apply to access to legislative documents do not cover non-legislative items. The processing of supranational legislation is on the whole much more transparent, particularly under the co-decision procedure where the EP is actively involved, and, overall, national parliaments find it easier to follow the adoption of EU laws because such procedures are subject to clearer timetables and inter-institutional rules. As a result, OMC and intergovernmental policy coordination thus weakens the transparency of collective decision making and, consequently, the accountability of the representatives. To facilitate parliamentary involvement in OMC, such matters should be processed

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by national parliaments using the same procedure that is reserved for scrutinizing the Commission’s legislative initiatives. This would mean that ministers would be forced to explain their actions before parliamentary committees and perhaps even in the plenary, with MPs having the chance to put questions to the ministers or other government representatives travelling to Brussels.27 While MPs and parliamentary civil servants may object to this by saying that their desks are already full without having to process such non-binding matters, one must keep in mind that policy coordination is to an increasing extent used in questions that are highly salient for most MPs, including such issues as employment policy, economic policy, social policy and pension reforms. Efficient scrutiny of such matters is thus significant also in terms of national legislation, as the policy choices adopted at the European level increasingly impact on member states’ domestic politics.28 The challenge posed by OMC is directly linked to the agenda for future research on national parliaments. The overwhelming majority of both comparative projects and case studies on parliamentary scrutiny of EU matters have focused primarily on institutional adaptation by domestic legislatures. As a result, we now have a good understanding of how national parliaments process European affairs, and what are the main difficulties facing national MPs in attempting to control the executive in EU issues. These studies on organizational arrangements and legal rules provide a solid framework for deepening research to the level of behaviour. Future research should thus establish a link between institutional choices and behaviour, examining whether procedural choices that work on paper also produce effective scrutiny in practice. Only through in-depth empirical analyses can we answer whether or to what extent national parliaments can really influence government behaviour. One way to conduct such research would be to compare scrutiny in the two modes of EU governance outlined above, with the sample containing both supranational laws and matters falling in the domain of OMC or other forms of intergovernmental coordination. Examples of the latter are coordination of national policies in the framework of Common Foreign and Security Policy (CFSP) and in the context of meeting the objectives of the Lisbon strategy. Future research should also make better use of theoretical insights from literature on political parties. After all, the deputies controlling the government are party politicians. Whether a party is in opposition or in government and the levels of party cohesion over Europe is bound to impact on the strategies national MPs employ to control the executive and to get involved in European matters.29 In his chapter on accountability, MacCarthaigh discussed the various problems that parliaments face in controlling the executive branch. European integration is just one of the external factors that contribute to deparliamentarization, and hence another useful concept for future research would be to analyse the effects of European integration on national legislatures as part of a broader set of contextual variables setting constraints on what MPs can do and the level of influence they can exercise. Here insights from the multi-level governance framework could be employed to get a fuller picture of both the institutional and policy constraints facing national parliaments. The multi-level governance framework could also be

Conclusion 283 of help in assessing the role of regional legislatures in the EU’s policy process. While the EU currently includes only three countries – Austria, Belgium, Germany – that are formally categorized as federal, countries throughout the Union have decentralized powers to the regions and local governments during the past decades.30 These decentralization reforms have gone hand in hand with simultaneous transfers of powers to the European level, and hence the EU impacts also significantly on the work of regional legislative bodies.31 If the EU constitutes an important actor in regional politics then it seems clear that within the framework of the enlargement process it enjoys extraordinary leverage over candidate states. This is often described as ‘normative’ or ‘transformative’ power, descriptives which allude to the decisive ways in which the EU penetrates the domestic politics of candidate states. What is interesting from the perspective of the themes explored in this volume is the degree to which enlargement and Europeanization seem to lead to deparliamentarization in candidate states. The pressures of transposing and implementing the EU’s legal rule book – the acquis communautaire – in advance of accession, allied with restricted timeframes for negotiation, place significant pressure on all political actors within candidate states to conform with EU standards. One important effect of the process is the demonstrable privileging of executives over parliaments. As the chapters in this volume on the 2004 entrants to the Union demonstrated, the eastern enlargement process was completely dominated on the candidate state side by governments and bureaucracies; MPs collectively had little choice but to act as regimetakers as the process evolved. Within the European integration literature the so-called ‘governance by enlargement’ framework points in the direction of future research but it has largely been silent on the ways in which Europeanization impacts on national parliaments in candidate and new member states.32 We need to know whether the deparliamentarization patterns evident within the pre-accession context carry through into the post-accession period: do they become structurally embedded in executive–legislature relations and thus difficult to reverse? It may well be, however, that the pre-accession environment constitutes a unique space in which the pressures of legal and normative adaptation to EU rules produce only a temporary dominance by the executive. Accession may lead to a recalibration of domestic rule structures which ensure greater parliamentary involvement with EU affairs, either through enhanced scrutiny work by EACs or specialized committees, or through specific measures such as channels for better information flows to MPs designed to boost the parliamentary capacity to engage seriously. As in the older member states, however, a reconstitution of institutional rules has got to be accompanied by greater resources and a willingness of MPs to participate fully in the process. Finally, regardless of how effective national parliaments are in controlling their governments in EU matters, they seem to enter the game practically always only after the Commission has published an initiative. As a result, domestic legislatures are always reacting to developments at the European level. Perhaps national MPs should reconsider their strategies. Is it really an optimal solution in terms of policy influence to focus scrutiny on individual pieces of EU legislation? One solution would be to be more selective in deciding which legislative initiatives deserve

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detailed scrutiny, and to complement this reactive scrutiny with proactive European work. A good example is the work done by the House of Lords. As Cygan showed in his chapter, the reports produced by the Lords on European matters are widely praised and have even managed to exert some policy influence in Brussels. Maybe other national parliaments could follow this route, and draft similar reports on questions that are salient for their countries. This would enable national MPs to send political messages to the European level before the policy process begins in the EU’s institutions.

Notes 1 See particularly the chapters in Philip Norton (ed.) (1996) National Parliaments and the European Union (London: Frank Cass); Andreas Maurer and Wolfgang Wessels (eds) (2001) National Parliaments on their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos). 2 COSAC (2005) Third Bi-annual Report: Developments in European Union, Procedures and Practices, Relevant to Parliamentary Scrutiny (Brussels); Klára Szalay (2005) Scrutiny of EU Affairs in the National Parliaments of the New Member States: Comparative Analysis (Budapest: Hungarian National Assembly). 3 See COSAC, op. cit. 4 See for example Gary Marks and Marco R. Steenbergen (eds) (2002) ‘Dimensions of contestation in the European Union’, Special issue of Comparative Political Studies, 35, 8; (eds) (2004) European Integration and Political Conflict (Cambridge: Cambridge University Press). 5 Simon Hix (1999) ‘Dimensions and alignments in European Union politics: cognitive constraints and partisan responses’, European Journal of Political Research, 35, 1: 69–106; Jacques Thomassen and Hermann Schmitt (1999) ‘Partisan structures in the European Parliament’, in Richard S. Katz and Bernhard Wessels (eds), The European Parliament, the National Parliaments, and European Integration (Oxford: Oxford University Press); and Leonard Ray (1999) ‘Measuring party orientations towards European integration: results from an expert survey’, European Journal of Political Research, 36, 2: 283–306. 6 See for example Jacques Thomassen and Hermann Schmitt (1999) ‘Issue congruence’, in Hermann Schmitt and Jacques Thomassen (eds), Political Representation and Legitimacy in the European Union (Oxford: Oxford University Press), pp. 186–208; Cees van der Eijk and Mark N. Franklin (2004) ‘Potential for contestation on European matters at national elections in Europe’, in Gary Marks and Marco R. Steenbergen (eds), European Integration and Political Conflict (Cambridge: Cambridge University Press), pp. 32–50; and Mikko Mattila and Tapio Raunio (in press) ‘Cautious voters – supportive parties: opinion congruence between voters and parties on the EU dimension’, European Union Politics. 7 Moshe Maor (1998) ‘The relationship between government and opposition in the Bundestag and House of Commons in the run-up to the Maastricht Treaty’, West European Politics, 21, 3: 187–207. 8 See for example Kenneth Hanf and Ben Soetendorp (eds) (1998) Adapting to European Integration: Small States and the European Union (London: Longman). 9 See also Torbjörn Bergman and Erik Damgaard (eds) (2000) Delegation and Accountability in European Integration: The Nordic Parliamentary Democracies and the European Union (London: Frank Cass). 10 Thomas Saalfeld (2005) ‘Delegation or abdication? Government backbenchers, ministers and European Union legislation’, Journal of Legislative Studies, 11, 3/4: 343–71; see also Tapio Raunio (2005) ‘Holding governments accountable in European affairs: explaining cross-national variation’, Journal of Legislative Studies, 11, 3/4: 319–42; Torbjörn Bergman (2000) ‘The European Union as the next step of delegation and accountability’, European Journal of Political Research, 37, 3: 415–29. 11 We know relatively little about the independent effect of EU on party choice in national elections, but it appears that overall European matters are of secondary importance to voters in national parliamentary electionsThere are exceptions to this rule, however. In Great Britain the European

Conclusion 285

12 13 14

15

16

17

18

19 20 21

22 23

issue emerged during the 1990s as a significant cleavage driving citizens’ voting behaviour. The Conservative Party failed to increase its vote share by adopting a highly Eurocritical position in the 1990s, because voter perceptions of the party’s position on the EU influenced its electoral support negatively. As the ideological differences between the two main British parties on a traditional left– right axis have diminished, the European issue has emerged as a significant factor influencing voting behaviour in elections to the House of Commons. See Matthew J. Gabel (2000 ‘European integration, voters and national politics’, West European Politics, 23, 4: 52–72; and on Britain, Geoffrey Evans (1998) ‘Euroscepticism and Conservative electoral support: how an asset became a liability’, British Journal of Political Science, 28, 4: 573–90; Geoffrey Evans (2002) ‘European integration, party politics and voting in the 2001 election’, British Elections and Parties Review, 12: 95–110. Maurer and Wessels, op. cit., and COSAC, op. cit. Karlheinz Neunreither (2005) ‘The European Parliament and national parliaments: conflict or cooperation?’, Journal of Legislative Studies, 11, 3/4: 466–89. See Philipp Kiiver (2006) The National Parliaments in the European Union: A Critical View on EU Constitution-Building (The Hague, Kluwer Law International), pp. 115–32. The volume by Kiiver contains also an excellent analysis on the limits of various forms of interparliamentary cooperation. See for example Magnus Blomgren (2003) Cross-Pressure and Political Representation in Europe: A Comparative Study of MEPs and the Intra-Party Arena (Umeå: Department of Political Science, Umeå University); Tapio Raunio (2002) ‘Beneficial cooperation or mutual ignorance? Contacts between MEPs and national parties’, in Bernard Steunenberg and Jacques Thomassen (eds), The European Parliament: Moving toward Democracy in the EU (Lanham, MD: Rowman & Littlefield), pp. 87–111. The arguments about OMC draw on Tapio Raunio (2005) ‘Much ado about nothing? National legislatures in the EU Constitutional Treaty’, European Integration online Papers, 9, 9 (eiop.or.at/ eiop/texte/2005-009a.htm); and Francesco Duina and Tapio Raunio (2006) ‘The open method of coordination and national parliaments: further marginalization or new opportunities?’, paper presented at the 15th International Conference of the Council for European Studies, 30 March–2 April, Chicago, USA. See in particular the material available at the homepage of the OMC Forum at the European Union Center of the University of Wisconsin-Madison (eucenter.wisc.edu/OMC) and the references in Susana Borrás and Bent Greve (eds) (2004), ‘The open method of co-ordination: theoretical, empirical and methodological challenges for EU studies,’ Special Issue of the Journal of European Public Policy, 11, 2; and in Jonathan Zeitlin and Philippe Pochet, with Lars Magnusson (eds) (2005) The Open Method of Co-ordination in Action: The European Employment and Social Inclusion Strategies (Brussels: Peter Lang). The role of the Commission in OMC and other forms of policy coordination varies considerably between policy areas, with the Council often adopting the leading function instead of the Commission. Duina and Raunio, op. cit. However, in several instances the non-binding policy recommendations are adopted by QMV instead of unanimity. Arthur Benz (2004) ‘Path-dependent institutions and strategic veto players: national parliaments in the European Union’, West European Politics, 27, 5: 881; Katrin Auel and Arthur Benz (2005) ‘The politics of adaptation: the Europeanization of national parliamentary systems’, Journal of Legislative Studies, 11, 3/4: 379. Zeitlin et al., op. cit. See also Kerstin Jacobsson and Herman Schmid (2003) ‘The European employment strategy at the crossroads: contribution to the evaluation’, in David Foden and Lars Magnusson (eds), Five Years Experience of the Luxembourg Employment Strategy (Brussels: ETUI), pp. 111–39; Kerstin Jacobsson and Åsa Vifell (2006), ‘New governance structures in employment policy making? Taking stock of the European employment strategy’, in Ingo Linsenmann, Christoph O. Meyer and Wolfgang Wessels (eds), Economic Government of the EU: A Balance Sheet of New Modes of Policy Coordination (London: Palgrave); and Mariely López-Santana (2006) ‘The domestic implications of European soft law: framing and transmitting change in employment policy’, Journal of European Public Policy, 13, 4: 491.

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24 Carolina de la Porte and Patricia Nanz (2004) ‘The OMC – a deliberative-democratic mode of governance? The cases of employment and pensions’, Journal of European Public Policy, 11, 2, 267–88. 25 Carolina de la Porte and Philippe Pochet (2005) ‘Participation in the open method of co-ordination: the cases of employment and social inclusion’, in Zeitlin et al., op. cit., p. 360. 26 Another related and highly important question, which lies beyond the scope of this chapter, is the extent to which these civil servants are subject to control by their ministers or even by their immediate superiors in the ministries. The evidence so far would largely indicate that civil servants effectively run the show, with fairly little political guidance from ministers. 27 Gráinne de Búrca and Jonathan Zeitlin (2003) ‘Constitutionalizing the open method of coordination: what should the convention propose?’, CEPS Policy Brief, No. 31; and Jacobsson and Schmid, op. cit. 28 This way national legislators would also have the possibility to learn about developments and policy choices in other countries, hence making it possible for national parliaments to produce better laws in the future. After all, this is a key argument used in favour of OMC. See Francesco Duina and Michael J. Oliver (2005) ‘National parliaments in the European Union: are there any benefits to integration?’, European Law Journal, 11, 2: 173–95. 29 See Ronald Holzhacker (2002) ‘National parliamentary scrutiny over EU issues: comparing the goals and methods of governing and opposition parties’, European Union Politics, 3/4: 459–79; Katrin Auel and Arthur Benz (2005), ‘The politics of adaptation: the Europeanization of national parliamentary systems’, Journal of Legislative Studies, 11, 3/4: 372–93. 30 According to Hooghe and Marks no EU country had become more centralized since the 1980s, with approximately half of them during the same time period decentralizing authority to lower tiers of government. See Liesbet Hooghe and Gary Marks (2001) Multi-Level Governance and European Integration (Lanham, MD: Rowman & Littlefield, ), pp. 191–212. 31 See Philipp Kiiver (ed.) (2006) National and Regional Parliaments in the European Constitutional Order (Groningen: Europa Law Publishing); and Tapio Raunio and Alex Wright (2006) ‘Holyrood and Europe: an incremental response to deparliamentarization,’ Regional and Federal Studies, 16, 3: 281–96. 32 See, for example, Antoaneta Dimitrova (2001) ‘Enlargement, institution building and the EU’s administrative capacity’, West European Politics, 25, 4: 171–90; James Hughes, Gwendolyn Sasse, and Claire Gordon (2004) ‘Conditionality and compliance in the EU’s regional policy and the reform of sub-national government’, Journal of Common Market Studies, 42, 3: 523–51; Frank Schimmelfennig and Ulrich Sedelmeir (2005) The Europeanization of Central and Eastern Europe (Ithaca, NY: Cornell University Press); John O’ Brennan (2006) The Eastern Enlargement of the European Union (Abingdon: Routledge); (2007) The EU and the Western Balkans: Stabilization and Europeanization through Enlargement? (Abingdon: Routledge).

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Zeitlin, J. and Pochet, P., with Lars Magnusson (eds) (2005) The Open Method of Co-ordination in Action: The European Employment and Social Inclusion Strategies (Brussels: Peter Lang). Zervakis, P. A. (2003) ‘Das politische System Griechenlands.’ In: Wolfgang Ismayr (ed.), Die politischen Systemen Westeuropas (Opladen: Leske & Budrich), pp. 687–730. Zervakis, P. A. and Yannis, N. (2001) ‘The parliament of Greece: slow but constant moves towards European integration?’ In: Andreas Maurer and Wolfgang Wessels (eds), National Parliaments on their Ways to Europe: Losers or Latecomers? (Baden-Baden: Nomos), pp. 147–72.

Index

References to notes are prefixed by n. accession: Bulgaria 256–63; Hungary 225–6; Ireland 178; Poland 204–11; Slovenia 243–51 accountability: challenges 39–43; defining 29–32; foreign policy 95; mechanisms 35, 41; and national parliaments 32–9; Nordic parliaments 109–10 Act on Cooperation 208–9, 212–14, 215 ‘Act on the Cooperation of the Federal Government and the German Bundestag in European Union Matters’ (EUZBTG) 135–6 ad hoc debates 36 adaptation: to European integration 8–16 agencies 40 agencification 40 agency loss 32 agenda-setting powers 34–5 Ágh, Attila 261 agricultural policies 1, 10, 161, 206 Altmaier, Peter 148 Amato, Giuliano 54, 128 Amsterdam Treaty 12–13, 14, 49, 71, 84 Annex XIII (Spanish compromise) 243 Articles 3a, 47 and 68: Slovenia constitution 245–6, 248 Assemblé Nationale 133–4, 136–7, 144–5, 146–9, 154–7 Assizes 12, 13, 46, 47–8, 60 Association Parliamentary Committee (EU–Poland Joint Parliamentary Committee) 206 Aznar, José Maria 89n2 Behn, R. 31 Bergman, T. 6 Blair, Tony 58, 89n2

Blondel, J. 6 Boelt Møller, L. 98, 99, 104, 109 Bouckaert, G. 39, 40 Bovens, M. 30 budget: EU 1 Bulgaria: accession 256–63; capacitybuilding 257–9; Committee on European Integration 259; National Assembly (Subranie) 256; parliamentary control 266–8; transposition 263–8 Bundestag 132–3, 145–6, 147–9, 152–3, 155–7 bureaucratic reform: and accountability 39–40 cabinets 38; duration 7 CAP (Common Agricultural Policy) 206 Capano, Gilberto 119 Cavaco Silva, Anibal 121 CEAs (Committees for European Affairs) see EACs (European Affairs Committees) CFSP (Common Foreign and Security Policy) 282 Charter of Fundamental Rights 50, 53, 61 civil society organizations 127–9 clientelism 116–17, 119, 120, 190 collective role 66–7, 72–6, 80 Commission for European Affairs: Slovenia 244 Committee of Permanent Representatives (COREPER) 17 Committee on European Integration Affairs: Hungary 222, 228, 233–4 committee system 69 committees 7, 37–8, 59–60, 133

308

Index

Common Agricultural Policy (CAP) 206 Common Foreign and Security Policy (CFSP) 282 the Commons see House of Commons communication functions 145–7 Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC) see COSAC Conference of the Speakers of European Parliaments 47, 58–9, 61 Congress of the Peoples of Europe 80–1 consensus institutional system 34, 38 constitution: drafting 13; Hungarian 221; Slovenia 241 Constitutional Treaty 3, 14–15, 71, 79–89, 148–9, 152–4, 174–5 Constitutional Tribunal 212–14 control mechanisms 6–7, 16–18, 111–12, 266–8 Convention on the Future of Europe 46 Conventions 13–14, 46, 53–7, 61, 206 cooperation: Poland and Baltic States 210–11 COREPER (Committee of Permanent Representatives) 17 corruption 41, 116, 119 COSAC (Conference of the European Affairs Committees) 13, 15, 38, 47, 48–53, 60–1, 74, 82, 164, 277 Cotta, Maurizio 119 Curry, David 52 the Dáil 179 debates 17, 36, 191–2, 275 decentralization 69, 283 decision-making process 2, 5, 66, 95 Decker, Armand 128 Declarations: Maastricht Treaty 12; Treaty of Nice 13 declarations 262–3 Delegation for the European Union (DUE) 138–40, 144–5 Delors, Jacques 5 democracy 95–6 democratic deficit 11, 31, 46, 178, 214 Denmark: accountability 109–10; consensus 108; EAC 102, 106–7; explanatory memoranda 98, 99; Green and White Papers 107; information 97; openness 100; permanent representatives 100–1; scrutiny 10; standing committees 104–5; transparency 101–2

deparliamentarization 2–8, 119–20, 255, 269–70, 272 depoliticization 40–1, 275 D’Estaing, Giscard 80 Diamandouros, Nikiforos 116 Dimitrakopoulos, Dionyssios 125 document transfer 140–1, 166–7 domestic policy 95–6 Doná, Alessia 126, 127 Döring, H. 36 Dubnick, M. 30–1 DUE (Delegation for the European Union) 138–40, 144–5, 155–6 duel mandate 72 Dyson, Kenneth 117 EACs (European Affairs Committees): Bundestag 137–8; Denmark 102, 105–7; establishment of 11; Finland 102–3, 105–7; function 17–18; general 8–10; Germany 155–6; Greece 122–4; information from 277; Italy 122–4; Poland 211–12; Portugal 122–4; Spain 122–4; Sweden 103, 105–7 early warning system 72, 85–7, 89, 277 ECB (European Central Bank) 2, 41 ECJ (European Courts of Justice) 2 EEA (European Economic Area) 112 electoral system: Hungary 221; Poland 204; UK 165–6 electorate 8 EM (explanatory memoranda) 97–8, 166–7, 230 EP (European Parliament) 3, 164–5 Ersson, S. 38 EU policy making: France and Germany 155–7 EU–Hungary Joint Parliamentary Committee (JPC) 224 EU–Poland Joint Parliamentary Committee (Association Parliamentary Committee) 206 ‘Eurocapacity’ 224, 229, 234 European Affairs Committees (EACs) see EACs European Central Bank (ECB) 2, 41 European Communities Act (1972) 181–3 European Communities (Amendment) Acts (1993/5) 183 European Convention 206 European Council 2 European Courts of Justice (ECJ) 2 European Economic Area (EEA) 112 European Integration Committee 262

Index 309 European Legislation Committee 205 European Parliament (EP) 3, 164–5 European Scrutiny Committee 164–5, 167, 174, 175n4 European Union Committee 169–70 European Union (Scrutiny) Act (2002) 185, 193 Europeanization 3–4 Euroscepticism 70, 117, 152, 153, 154–5, 207, 276 EUZBTG (‘Act on the Cooperation of the Federal Government and the German Bundestag in European Union Matters’) 135–6 ex ante activity 69, 173 ex post scrutiny 69, 109–10, 173, 268 executive branch 5, 8 executive–legislature relations: Germany and France 149–51; Ireland 183–4 expert salaries 261–2 expertise 261 explanatory memoranda (EM) 97–8, 166–7, 230 Fabbri law 122 Fabbrini, Sergio 126, 127 Fabius, Laurent 13 Featherstone, Kevin 117 financial accountability 33 Finland: accountability 109, 110; committees 102–3, 104, 105; consensus 108–9; EAC 106–7; explanatory memoranda 97–8, 99; information 97, 110–11; openness 99–100; permanent representatives 100–1; transparency 101–2 Fischer, Joschka 58, 89n2 Flinders, M. 40 Floch, Jacques 148 foreign policy 95–6, 112–13 Foster Committee 165, 173, 175n1 Frage, Ana 125 France: Assemblé Nationale 133–4, 136–7, 144–5, 146–9, 154–5; constitutional process 147–9; DUE (Delegation for the European Union) 138–40, 144–5; EU policy making 155–7; and European integration 153–5; executive–legislature relationships 149–51; legal framework 136–7; public debates 146–7; transmission practice 141 Freedom of Information legislation 39 French–German cooperation 132–4 funding 261–2

German–French cooperation 132–4 Germany: Bundestag 132–3, 135–6, 143–4, 145–6, 147–9, 152–3; constitutional process 147–9; EAC 137–8; and EU integration 151–3; EU policy making 155–7; evaluation procedures 143–4; executive–legislature relationships 149–51; legal framework 135–6; public debates 145–6; transmission practice 140–1 Giuliani, Marco 119 Gonzalez, Felipe 116, 121 government–parliament duality 73–4 government–parliament relations 6–8 Grand Committee: Hungary 223–4, 232 Greece: civil society mobilization 127; corruption 116; EAC 124; and EU affairs 120; resources 126; scrutiny 125 Green Papers 107–8, 166 Guidelines for Departments 186–7 guillotine procedure 36 Gunther, Richard 116 Hansen, Ivar 59 Hegeland, H. 5 Heseltine, Michael 57 ‘hidden information’ 32 Hogwood et al. 40 Hölscheidt, S. 144 House of Commons 163–9, 174 House of Lords 163–4, 169–71, 284 Hübner, Danuta 210 Hungary: accession 225–6; before accession 222–4; CEA 222, 228, 233–4; constitution 221, 226; Grand Committee 232; information 227–8, 229–30; monitoring 232; National Assembly 220–2, 224; parliamentary control 226–7, 228–9; parliamentary system 220–2; reports 234–5; scrutiny 230–1; standing committees 233; subsidiarity principle 235 individual role: of parliaments 66, 72–6 individual scrutiny: national parliaments 67–8; national variation 68–70 influence: Nordic parliaments 103–8 information: access to 83–5; between parliaments 12; Bulgaria 261; and COSAC 53; Hungary 227–8, 229–30; Ireland 185; as key factor 7, 71, 272; and Nordic parliaments 96–9 information asymmetry 79, 83 institutional convergence 273–8

310

Index

interest groups: national 4 interpellation 36, 142–3 Ireland: accession 178; constitutional amendments 181–3; democratic deficit 178; European Communities Act (1972) 181–3; Europeanization 190–1; executive–legislature relations 183–4; information 185; Oireachtas (Irish Parliament) 179–81; parliamentary control 191–3; scrutiny process 178–9, 184–94; Treaty of Nice 178 Irish Parliament (Oireachtas) 179–81 Italy: corruption 116; and EU affairs 119–20; and EU directives 122–3; prointegrationism 117; representation 128; resources 126–7; scrutiny 125–6; standing committee 123 Jellicoe Committee 170 Johannesson, C. 5 Joint Committee on European Affairs 183, 184, 189, 190 Joint Grand Committee 175 Jospin, Lionel 89n2 JPC (EU–Hungary Joint Parliamentary Committee) 224 Juppé, Alain 91n25 Kaklamanis, Apostolis 124 Kassim, H. 5 Kiewiet, D. R. 32 King, A. 7 Kohl, Helmut 128 Kovács, László o 235 La Pergola law 122, 205 Ladrech, R. 3 Laeken Declaration 13, 46, 82 Lane, J. E. 38 Laprat, G. 221 legal basis: of scrutiny 70 legal framework: Germany 135–6 legislation: supranational 281 legitimacy 8, 58, 75, 136, 267 Lequiller, Pierre 148 Leston-Bandeira, C. 121 liberal intergovernmentalist approach 4 Lijphart, A. 34, 221 Maastricht Treaty 11, 153–4; Declarations 12, 46, 71 McCubbins, M. D. 32 Madison’s dilemma 32 Mair, P. 42

majoritarian institutional system 34, 38 mandating 18, 35 Maurer, A. 4, 124 Maybray-King Committee 165, 170, 173, 175n1 meetings 59–60 memoranda: explanatory 97–8 Méndez de Vigo, Iñigo 54 methods: of scrutiny 69–70 Meyer, Jürgen 148 Mezey, M. 6, 37 Minimum Standards in Asylum Procedures 176n20 Mitchell, Gay 197n71 Mittag, J. 4 Mitterand, Francois 47 monitoring 41–2, 232 Moratinos, Miguel Ángel 126 Moravcsik, A. 4, 8 Mulgan, R. 30, 40 Müller, W. C. 6 multi-level governance scenario 4, 282–3 National Action Plans (NAPs) 281 National Assembly: Bulgaria 256; Hungary 220–2, 224 national legislatures 79–89 national parliaments 4–6 ‘new’ southern Europe 116 Nice, Treaty of 13, 46, 82, 178, 191 Nielsen, J. G. 98, 99, 104, 109 non-governmental organizations: national 4 Nordic parliaments: consensus 108–9; EACs 105–7; as exemplars 95; foreign policy 112–13; Green and White Papers 107–8; influence 103–8, 111– 12; information 96–9, 110–11; MEPs 100–1; openness 96–7, 99–102; participation 102–3; transparency 101–2 Norman, Peter 56 normative power 283 Norton, P. 7, 10, 35–6, 46 Norway 112 Oireachtas (Irish Parliament) 179–81 Olsen, Erling 60 Open Method of Coordination (OMC) 5, 278–82 openness 31, 54, 96–7, 99–102 Orban, Viktor 224 Orders of Reference 185–6 outsourcing 41 oversight 35–6

Index 311 Pandraud Act 136–7 Papandreou, Andreas 116 Parliament Acts (1911 and 1949) 169 parliamentary accountability 32–42 parliamentary control 266–8 parliamentary democracy 33 parliamentary groups 133 parliamentary questions (PQs) 35, 36 parliamentary scrutiny 16–18 parliaments, national 4–6 participation 102–3 PASOK 120 patrimonial–clientelistic features: southern Europe 116–17 patrimonialism 116–17 perception: of legitimacy 75–6 Peters, B. G. 5, 42 Pierre, J. 42 Pietro, Antonio di 116 Pillars, two and three 166, 169 plenary debates 17, 275 Poland: after accession 208–11; before accession 204–7; Constitutional Tribunal 212–14; EAC 211–12; parliament 204; parliamentary committees 211–12; scrutiny 205, 208–9 policies: agricultural 1, 10, 161, 206; regional 1 policy initiation 7 policy process 2 political accountability 32–3 political parties 275 Pollitt, C. 39, 40 Portugal: civil society mobilization 128; corruption 116; EAC 123; and EU affairs 121; resources 126; scrutiny 124–5 power: transformative 283 PQs (parliamentary questions) 35, 36 principal–agent model 31–2 proactive EU work 283–4 Protocols 13; Constitutional Treaty 14–15 public accountability 39 public debates 145–6 Puhle, Hans Jürgen 116 QMV (qualified majority voting) 3, 11, 280 ratification process 11–12, 148–9, 152–4 reactive response 283 redistributive capacity 1 referenda: Hungary 225 reforms: bureaucratic 39–40 regional legislatures 283

regional policies 1 regulators 41–2 reports 171, 268 representatives: in Brussels 100–1 research projects 4–8 resourcing 191–2 Rometsch, D. 4 Schattschneider, E. E. 35 scrutiny: Danish model 10; Hungary 228, 230–1; Ireland 178–9, 184–94; methods of 16–18; national level 61–2, 67–76; Poland 205, 208–9; select committees 61; Slovenia 244; southern Europe 124–9; tighter 273–8; UK 163–75; vs. oversight 35–6; Working Group IV 55, 61 see also accountability Scrutiny Act 193 Scrutiny Reserve Resolution 165, 166, 168, 172–3, 174 SEA 11 the Seanad 179–80 Second and Third Pillar documents 166, 169 second chamber 57–8, 80–1, 89n2 Séguin, Philippe 154 Sejm 204, 206, 208–9, 211–12 Select Committee on European Legislation 175n4 Senat 204, 208–9, 211, 212 single currency 2 single market project 10–11 Slovenia: after accession 246–51; before accession 243–6; Commission for European Affairs 244; constitution 241, 244–6; National Assembly 241–52; National Council 242 southern Europe: ‘new’ 116; parliaments 118; patrimonial–clientelistic features 116–17; scrutiny 124–9 sovereign bodies 3 sovereignty: Hungary 220, 226; national 11; Slovenia 244; substitute 173–5 Spain: corruption 116; and EU affairs 121–2; Joint Committee 123–4, 128; resources 126; scrutiny 126 Spanish compromise (Annex XIII) 243 Speakers’ Conference see Conference of the Speakers of European Parliaments specialized standing committees 12 Standing Committees 103–5, 167–8, 233, 259 Straw, Jack 175n5 Strøm, K. 6

312

Index

structural funding 4 Sub-Committee on Security 189; Ireland 184–90 sub-committees: House of Lords 170–1; Hungary 223 Subranie (Bulgaria National Assembly) 256 subsidiarity principle 79, 82, 85–7, 165, 235 substitute sovereignty 173–5 supranational legislation 281 Sweden: accountability 110; consensus 109; EAC 103, 106–7; explanatory memoranda 98–9; Green and White Papers 107–8; information 97; openness 99; permanent representatives 100–1; standing committees 103–4, 105; transparency 101–2 TEU (Treaty on European Union) 48 third chamber 72 Töller, A. E. 5 trade barriers 1–2 trade regulation 1–2 transformative power 283 transmission practice 140–1 transparency 99–102, 174, 281–2 transposition 205–6, 209–10, 263–8, 283 Treaty of Amsterdam 12–13, 14, 49, 71, 84 Treaty of Nice 13, 46, 82, 178, 191 Treaty on European Union (TEU) 48

Trondal, J. 112 Tsebelis, G. 34 UK (United Kingdom): scrutiny 10, 163–75 Veggeland, F. 112 vetoes 72–3 Videbæk, Tove 52 Visegràd cooperation 211 Vitorino, Antonio 125 webcasts 31 Wessels, W. 4, 124 Westminster systems 34 WG IV 82–3 Wheare, K. C. 35 White Papers 166; Nordic parliaments 107–8 Wiberg, M. 36 Working Group IV 55, 82–3 working groups 51, 55, 82–3 Wright, V. 5 Yannis, Nikos 124 Zapatero, José Luis 126 Zeitlin et al. 281 Zervakis, Peter 124