By Nerea Peris Brines
The democratic legitimacy of the decision-making process at EU level has been subject to a great debate for decades. 1 The EU institutions are well aware of this, thus there has been a tendency to include more democratic measures in order to reverse the growing disaffection towards supranational integration that can be appreciated by the low turnout in European elections.2 The enhanced role given to national parliaments in the Treaty shows the determination of the EU legislator to improve the democratic deficit and reinforce the European integration process. Thereby, national parliaments (NPs hereinafter), which were long excluded from the ‘European business’3 are now formally recognised as contributors to ‘the good functioning of the Union’4 and have been given some instruments to do so. One of the most revolutionary ones is the Early Warning Mechanism (EWM hereinafter), which was conceived as the best solution not only to enhance the democratic legitimacy of the EU by giving a greater role to NPs, but also to create a subsidiarity control mechanisms without having to create any new institutions.5 However, seven years after the entry into force of the Treaty of Lisbon, the effectiveness of this mechanisms is being called into question, as only three yellow cards have been triggered so far. This question will be discussed in this paper, as well as the alternatives that in my view should be considered to reinforce the democratic legitimacy of the European Union. In order to provide a reasonable opinion, the principle of subsidiarity which lies on the basis of the EWM will be discussed in the first place. This will be followed by an analysis of the EWM, its advantages and drawbacks, and finally a reasoned conclusion will be provided.
The principle of subsidiarity and the (enhanced) role of National Parliaments
As mentioned above, one of the aims of the Treaty of Lisbon was to enhance the role of NPs. In doing so, the subsidiarity principle plays a very important role. Article 5(3) of the Treaty of Lisbon establishes this principle, requiring that in areas which do not fall under the Union’s exclusive competence, it can act only if and insofar the concrete policy goals cannot be achieved by Member States but can be better achieved at EU level. These two criteria have been called the ‘national insufficiency test’ and the ‘comparative efficiency test’.6 Besides, NPs are given the task to ensure compliance with this principle. Articles 6 and 7 of Protocol 2 establish the mechanisms provided to NPs to carry out this task. Before analysing them, we should focus briefly in the very nature of the principle of subsidiarity.
Subsidiarity can be addressed both from a legal and a political perspective. Regarding the former, some authors consider subsidiarity as a legal check performed by NPs to determine whether the EU has competence to act in a certain field. Others state that this entails a constitutional function that should not be performed by NPs, but by the Court of Justice of the European Union (CJEU hereinafter).7 Indeed, the judicial review plays a main role, as since Lisbon the CJEU can assess complaints regarding the infringement of subsidiarity in actions brought by Member States or ‘notified by them on behalf of their NPs’.8 However, many academics consider that the CJEU takes a ‘light approach’ when addressing subsidiarity, as its case law has shown that the ECJ won’t lightly overturn EU action for violation of subsidiarity.9 Similarly, Davor Jancic considers that ‘due to its political character, subsidiarity is largely unfit for judicial review’.10 This reasoning is based not only on the clear inclination of the CJEU to assess it from a lighter approach,11 but also on the fact that the possibility to bring an action before the Court is dependent on the government’s agreement to do so and that this kind of ex post review comes when it is too late.12
The political nature of the subsidiarity principle has been defended by many (e.g. Jancic). According to De Wilde (2012), in a political sense subsidiarity is regarded with governance efficiency and effectiveness, and it’s more related with the activity of a parliament.13 In this sense, Cooper (2012) considers that the new mechanisms given to NPs to control the compliance with the subsidiarity principle, named the EWM, has created what he calls a ‘virtual third legislative chamber’ at EU level. In his view, the EWM creates a new representative channel, a new public forum to discuss EU policy questions, thus allowing NPs to perform the functions of a legislative chamber even without meeting physically.14 This ‘meta-parliament’15 will be able to influence the legislative outcomes through the yellow card and especially the orange card mechanism, even if the thresholds are not met, as there is an obligation for the Commission to take into account the reasoned opinions submitted by NPs. Nevertheless, this seems to be a too optimistic approach, as so far, no orange card has been triggered and only one of the three yellow cards triggered was successful. Moreover, as discussed below, the EWM does not give NPs any power to influence EU legislation as ‘agenda-settlers’, but only a reactive power.16
The Early Warning System and the Yellow Card Mechanism
The EWM is an institutional innovation which was first introduced in the draft of the Constitutional Treaty. There, the yellow card mechanism was already established as a way to enhance the role of NPs. However, some authors have declared that in fact, this mechanisms did not award new powers to NPs, as they already had the right to send ‘angry letters’ to the Commission.17 In the Treaty of Lisbon, this shortcoming was considered and thus the ‘orange card’ mechanism was added to the previous one. Protocols 1 and 2 regulate this new procedure, which can only be used by NPs to signal violations of the principle of subsidiarity. The EWM is therefore a mechanism which applies only to legislative proposals falling outside the scope of the EU exclusive competence. NPs have eight weeks since the proposal has been transmitted to them to send reasoned opinions about the compliance with subsidiarity. Any other claim not related with subsidiarity cannot be observed under this procedure. When a number of NPs which represent at least one third of the votes given to them express non- compliance with subsidiarity, the yellow card procedure is triggered and the Commission must review its proposal. After that, it must give a reasoned opinion on its decision to maintain, amend or withdraw the proposal. Under the ordinary legislative procedure, when a simple majority state non-compliance with subsidiarity, the procedure is the same, as the Commission should review and take a decision on the proposal. The innovation of this mechanism is that the Council by 55% of the votes or the European Parliament by a majority of votes can override the proposal. Some have argued that this mechanism, in fact, just gives NPs a passive role, as not only their participation is limited to that very early moment of the legislative procedure, but they can’t add any provisions to the proposals, since they are only allowed to address the compliance with the principle of subsidiarity.18 Thus, despite this sort of ‘game of cards’ created by the Treaty of Lisbon it can be said that NPs have been transformed from active policy shapers to passive policy commentators.19
However, there are some arguments in favour of the EWM that could help in assessing its effectiveness. First, it helps to reverse the ‘deparliamentarisation’ process taking place at EU level, i.e. the increasing power of the executive branch to the detriment of the legislative one. Secondly, the unique legitimacy that NPs possess may alleviate the democratic deficit of the EU policy-making process and finally, it allows NPs to defend their own sphere of competence at EU level.20 Nevertheless, the EWM is also subject to many drawbacks and criticism. Due to the limited space, we’ll only discuss the ones which can be more interesting in assessing the effectiveness of the yellow card. This being said, the lack of incentives, the logistical problems, and the inherent weaknesses of the mechanism will be considered. Regarding the first, most parliamentarians could not desire to focus on EU matters, as the EWM is a very demanding process which, actually, cannot guarantee any positive outcome politically wise. Thus, applying this rational calculus it turns out to be more attractive for national parliamentarians to focus on domestic issues which can attract more votes. Besides, the short time limit, the difficulty to reach the thresholds and the fact that legislation has often been agreed upon beforehand in informal ‘trialogues’21 and will therefore be difficult to change, may disincentivize NPs. Furthermore, as NPs depend on each other to trigger the yellow and orange card mechanisms, the lack of parliamentary involvement in EU affairs in some NPs aggravates the democratic deficit in others.22 Moreover, as it has been noted above, the scope of the EWM is limited to the principle of subsidiarity, thus NPs don’t have an actual power in the decision-making process, even if the yellow card is triggered. Lastly, the success of the EWM and in particular of the yellow card depends ultimately on the Commission’s decision, as it holds the ultimate power in the process and can ignore the NPs’ opinion.23 In this sense, the effectiveness of the EWM relies more on persuasion than on the exercise of power.24
This being said, can we consider the yellow card as a successful mechanism? So far only three yellow cards have been triggered.25 Among those, only the Monti II Regulation was withdrawn by the Commission, but not on the basis of violation of the principle of subsidiarity, but because of the lack of support in the European Parliament and Council. Therefore, the role of NPs is still very weak, as the mechanisms provided to them in order to improve their involvement in the EU policy-making process have shown not to be too effective. However, I would not consider the yellow card a failed mechanism, but a non-complete one which should be complemented with others that would provide NPs with a greater role at EU level. In this sense, the green and red card proposals are very interesting. The former would permit NPs to formulate legislative proposals and the latter would empower NPs directly to veto EU legislation as long as the thresholds were reached. This would entail a shift in the NPs’ role from passive to active players,26 and would give them the possibility to participate and have a word not only regarding the principle of subsidiarity but also the substance of EU legislation.
The democratic deficit of the EU decision-making process has led to the introduction of NPs in the Treaty of Lisbon, where they were given a new role as ‘guardians of the Treaties’27 through the new EWM mechanisms. However, despite the potential advantages that it may entail, the practice has shown that is still a lacking mechanism, as it does not confer NPs a real power to influence in the decisions taken at EU level. This, together with the many obstacles that the EWM entails, may be a disincentive to NPs to participate in the EU decision-making process. In order to reverse this, it seems crucial to enhance the role of NPs through the introduction of other mechanisms which may allow them to take a real role at the EU level and focus on the substance rather than only on the principle of subsidiarity. Thereby, NPs could effectively perform the role presumably given to them as guardians of European integration in general and not only of subsidiarity.28 In short, even though some steps have been taken to cope with the democratic deficit at EU level, this process is still lacking and requires stronger powers to be given to NPs in order to strengthen the input legitimacy of the decisions taken at EU level.
1 Taking the conception made by Scharf, the democratic deficit will be considered for the purposes of this article as a lack of procedural or ‘input legitimacy’, which can be identified as ‘the participatory quality of the procedure leading to laws and rules as ensured by the “majoritarian” institutions of electoral representation’ (as cited in Ferri 2013, p. 59).
2 Ferri, 2013.
3 Fasone, Fromage, & Lefkofridi 2015, p. 31.
4 Article 12 Treaty on European Union
5 Cooper 2012, p. 446.
6 Goldoni 2014, p.100.
7 De Wilde 2012, p.12.
8 Article 8 Protocol on the application of the principles of subsidiarity and proportionality
9 Craig & De Búrca 2015, p. 100.
10 Jancic 2015, p. 944.
11 Some authors go one step further and state that the CJEU has a clear ‘pro-European bias’ (see Goldoni 2014, p. 102)
12 Jancic 2015, p. 965; Goldoni 2014, p. 102.
13 De Wilde 2012, p. 12.
14 Cooper 2012, p. 444.
15 Ibid. p. 445.
16 Fasone, Fromage, & Lefkofridi 2015, p. 31.
17 Cooper 2012, p. 447.
18 Fasone, Fromage, & Lefkofridi 2015; Raunio 2010.
19 Jancic 2015, p. 941.
20 Cooper 2012, p. 454.
21 Concept referred to the informal meetings among the Commission, the Council and the European Parliament.
22 De Wilde 2012, p. 15.
23 Raunio 2010, p. 7.
24 Cooper 2012, p. 458.
25 On the proposal for the Monti II Regulation, the Regulation on the establishment of the European Public Prosecutor’s Office and the Posted Workers Directive.
26 Fasone, Fromage, & Lefkofridi 2015, p. 32.
27 Jancic 2015, p. 941.
28 Ibid. p. 954.
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