DIRECTORATE GENERAL FOR INTERNAL
POLICIES
CONSTITUTIONAL
AFFAIRS
The Legisprudential Role of
National Parliaments in the
European Union
Outline
1.
2.
3.
4.
National parliaments as legisprudential
actors
The EWS and the scope of review
The “green card”
The “red card”
1. National parliaments as
legisprudential actors


Question: how to frame/conceptualize
the role of NPs in EU law-making?
Art. 12 TEU and the “European function”
of NPs
• Information rights
• Revision of the Treaties
• Control of national governments
• Control of the subsidiarity principle
• Interparliamentary cooperation
1. National parliaments as
legisprudential actors

Conceptual/Theoretical proposals
• Multilevel parliamentary field (Crum/Fossum)
• Euro-national parliamentary system
•

(Fasone/Lupo)
Composite constitutional order (Besselink)
Question: what is the overall function or
added value for NPs in European lawmaking?
1. National parliaments as
legisprudential actors

The legisprudential role of NPs (I)
• To promote the rationality of the EU lawmaking process
• To assess on the justification, quality,
effectiveness and reasonableness of EU
legislation
1. National parliaments as
legisprudential actors

The legisprudential role of NPs (II)
• Systematic coherence and goals of a draft
•
•
•
legislative proposal
Justification for intervention or regulation at
EU level
Ongoing desirability of norms
Overall proportionality of the intended EU
regulation
2. The EWS and the scope of
review

The subsidiarity principle as a legal
principle

Subsidiarity control extends to conferral
and proportionality

Difficulty in separating the 3 principles of
art. 5 TEU
2. The EWS and the scope of
review



Conferral as pre-condition of subsidiarity
Inbuilt dimension of proportionality in
subsidiarity (“insofar”)
Respect for subsidiarity requires the EU
measure to be:
• Appropriate
• Indispensable
• Congruent with the objective pursued
2. The EWS and the scope of
review

Comprehensive model of subsidiarity
review:
• Can the EU act? (competence)
• Shall the EU act? (subsidiarity stricto sensu)
• How shall the EU act? (proportionality)

It would allow the EWM to promote the
legisprudential role of NPs
3. The “green card”

Allows NPs to be proactive in the lawmaking process
• Requesting draft legislative proposals
• Requesting the review or amendment of
existing legislation


Allows NPs to address the necessity and
justification of legislation
Allows NPs to scrutinise existing
legislation
•
3. The “green card”




Informal mechanism (v.g. spontaneous
initiative of a group of NPs)?
Enhancement of the Political Dialogue?
Desirability of formalization through
treaty amendment?
Which threshold to trigger a green card
and produce binding effect?
• Advantages of a low threshold
4. The “red card”

Would allow NPs to veto draft legislative
proposals

Crucial question: who should have the
power to determine if the principle of
subsidiarity has been breached?
4. The “red card”

Protocol 2 Lisbon Treaty: NPs assigned
crucial task of controlling compliance
with subsidiarity
• Avoids the dilemma of self-control through EU
•
institutions (namely, the Commission, the
Council and the EP)
Externalises the control to Parliaments of
Member-States
4. The “red card”

NPs control is presently rather weak
• “Yellow card” and “orange card” do not bind
•
•
•
the Commission to withdraw a proposal
No orange card has been triggered until now
Only 3 yellow cards
Interparliamentary cooperation needs to be
strenghtened
4. The “red card”




Represents strong empowerment of NPs
Need for a high threshold
Requires treaty amendment
Avoid overvaluation of this mechanism
• Requires very strong interparliamentary
•
•
cooperation
Improbable
Political pressure of both yellow and orange
cards
Presentation by
Luís Heleno Terrinha
Universidade Católica Portuguesa
Policy Department Citizens’ Rights and Constitutional Affairs
Responsible Administrator: Eeva ERIKSSON
[email protected]