The Portuguese Assembly of the Republic:
From democratic consolidation to European participation?
Davor Jančić
PhD candidate, Utrecht University
Visiting researcher, University of Lisbon
Contact: [email protected]
5th Pan-European Conference on EU Politics
University of Oporto and University Fernando Pessoa
Porto, Portugal
24-26 June 2010
Draft version. Please do not cite. Comments welcome.
1. INTRODUCTION: TAKING EUROPE'S SOUTH SERIOUSLY.
"Having spent a long time with its back turned to the continent of Europe, and not having been
quick enough to interpret the historic destiny of its colonial period, Portugal let itself be left on the
fringe of the European family and fell into a position that placed it politically and economically on
the periphery […but…] Europe is seen by us today as another name for freedom."1
Francisco Seixas da Costa, Secretary of State for European Affairs, 30 June 2000
While a part of the literature on the role of national parliaments in the European Union
has begun to probe deeper into their Europeanisation or direct involvement in EU decision
making,2 separate country studies have progressed unevenly. The focus has primarily been on the
western and northern Member States, whereas the southern European parliaments have more
often than not been treated jointly as a group without further inquiring into the intricacies of their
scrutiny arrangements.3 In this contribution, we address that shortcoming in respect of the
Portuguese parliament, the analysis of which has slowly moved away from the virtually
ubiquitous focus on the consolidation of Portuguese democracy4 towards its Europeanization5.
This paper argues that the Portuguese Assembly of the Republic (Assembleia da
República or Assembly) has not only surmounted the political challenges that have unwound
during the periods of establishment and consolidation of democracy. The Assembly has also
succeeded to appropriate a degree of institutional prestige in the business of parliamentary control
of EU decision making by availing itself of scrutiny methods that reduce its dependence on the
government. This has primarily been carried out through closer relations with the European
Commission.
1
Costa, Francisco Seixas da. "A European Vocation." in Portugal: a European story, by Álvaro de Vasconcelos and
Maria João Seabra (eds), Cascais: Principia, 2000: 7, 9.
2
See for instance: Besselink, Leonard. "National parliaments in the EU's composite constitution: a plea for a shift in
paradigm," in National and regional parliaments in the European constitutional order, by Philipp Kiiver (ed),
Groningen: Europa Law Publishing, 2006: 117-131; Kiiver, Philipp. "Legal accountability to a political forum? The
European Commission, the Dutch parliament and the early warning system for the principle of subsidiarity,"
Maastricht Faculty of Law Working Paper 2009-8; Miklin, Eric. "Visibility of choices and better scrutiny? The effects
of a politicisation of EU decision-making on national parliaments," Paper prepared for the 5th ECPR General
Conference, Potsdam, 10-12 September 2009; Pliakos, Asteris. "National parliaments and the European Union:
necessity of assigning a supranational role," European Review of Public Law, Vol. 19, No. 3, 2007: 757-785.
3
See for example: Bandeira, Cristina Leston. "Southern European parliaments in democracy," The Journal of
Legislative Studies,Vol. 9, No. 2, 2003: 1-7; Magone, José. "South European national parliaments and the European
Union: an inconsistent reactive revival," in National parliaments within the enlarged European Union: from victims of
integration to competitive actors?, by John O'Brennan and Tapio Raunio (eds), London: Routledge, 2007: 116-132.
4
The academic literature on this topic is vast. See merely as examples and that only in the English language: Bandeira,
Cristina Leston. From legislation to legitimation: the role of the Portuguese parliament, London: Routledge, 2004;
Corkill, David. "The political system and the consolidation of democracy in Portugal," Parliamentary Affairs, Vol. 46,
No. 4, 1993: 517-533; Goldey, David B. "Elections and the consolidation of portuguese democracy: 1974–1983,"
Electoral Studies Vol. 2, No. 3, 1983: 229-240; Linz, Juan José and Stepan, Alfred C. Problems of democratic
transition and consolidation: southern Europe, South America, and post-communist Europe, Baltimore: The John
Hopkins University Press, 1996; Manuel, Paul Christopher. The challenges of democratic consolidation in Portugal:
political, economic, and military issues, 1974-1991, Westport: Praeger Publishers, 1996; Maxwell, Kenneth R. and
Monje, Scott C. (eds). Portugal: the constitution and the consolidation of democracy, 1976-1989, New York: Columbia
University Camões Center, 1991; Maxwell, Kenneth. The Making of Portuguese Democracy, Cambridge: Cambridge
University Press, 1995; Morlino, Leonardo. Democracy between consolidation and crisis: parties, groups, and citizens
in Southern Europe, Oxford: Oxford University Press, 1998.
5
See Paulo, Maria Teresa and Bandeira, Cristina Leston. "O impacto da europeização no parlamento," Instituto
português de relações internacionais, Universidade Nova de Lisboa, Working Paper 21,
http://www.ipri.pt/publicacoes/working_paper/pdf/Parlamento.pdf, accessed on 23 February 2008; Pardal, Alves. "A
Assembleia da República no processo de integração europeia," Instituto de estudos estratégicos e internacionais,
Background Paper, http://www.ieei.pt/files/Background_paper_Alves_Pardal.pdf, accessed on 23 February 2008.
1
The immediate goal of the present analysis is to furnish an in-depth insight into the
constitutional, statutory and informal arrangements for the Assembly's participation in EU
decision making. Special emphasis is laid on the 2006 European Scrutiny Act, the 2010 reform of
scrutiny procedures, and the merits of the Assembly's participation in the Barroso initiative.
A befitting point of departure for the present analysis of the Assembly's competences in
EU affairs is an argument advanced a decade ago regarding the impact of European integration on
the parliament and system of government of Portugal. It was then argued that the accelerated
process of integration had had a profound and adverse effect on national parliaments in four main
respects: (a) loss of legislative competence; (b) governmentalisation of the political decision to
revise the constitution; (c) growing importance of compromises agreed by the government at the
EU level that are presented to the parliament as fait accompli; and (d) absence of relations
between national parliaments and EU institutions.6 This thesis needs a thorough revision, because
Portugal has since established firm constitutional guarantees of parliamentary participation in the
processes of European integration, which are further developed both in statutory form and
through a range of internal and informal practices.
However, to provide background for this examination, we first adumbrate the key events
from Portuguese constitutional history and then present the Assembly's current constitutional
position. Therewith, we aim to illustrate the scale of political oscillations that have defined
Portugal's democratic effort as a volatile force for much of its constitutional evolution. Such a
review also serves to better appreciate the value of Portugal's present-day governmental stability.
As a former Chairman of the Assembly's European Affairs Committee, Jorge Braga de Macedo
remarked in 1995, "[i]t is not easy, for those who still have the class struggle in the Preamble of
the Constitution, to approach the idea of Europe that matters to the Portuguese as a partnership
that keeps us cohesive within the prosperous and peaceful Europe".7 The reader who is familiar
with the constitutional history of Portugal is invited to skip the following heading.
2. THE ORIGINS OF PORTUGUESE DEMOCRACY: OF COUPS AND REVOLUTIONS.8
Portuguese constitutional history begins in the early nineteenth century. The aftermath of
the Napoleonic Wars (1803-1815), during which France invaded Portugal three times and during
which the King of Portugal João VI fled to the then Portuguese colony of Brazil, set the ground
for the unrest spearheaded by the growing liberal forces. The liberals demanded not only the
King's return to Portugal but also greater self-rule by the Portuguese people. As a consequence,
the Liberal Revolution peacefully broke out in the city of Porto in 1820 and resulted in the
adoption in 1822 of the first Portuguese constitution. Upon his return to Lisbon, King João VI
swore an oath of allegiance to the constitution and Portugal thus became a constitutional
monarchy.
The Constitution of 1822 vested sovereignty in the nation and espoused a classic liberal,
tripartite division of government. The legislative power was exercised by a directly elected,
unicameral Chamber of Deputies, whom the executive branch, consisting of the King and his
ministers, had no right to dissolve. This constitution divided Portugal into two camps: the liberals,
who supported the constitution, and royalists, who supported absolutism. Though historic, the
constitution of 1822 was short-lived. Two years after its adoption, succumbing to the pressure of
the royalists, led by his son Miguel, King João VI suspended the constitution and ruled as a
moderate absolutist until his death in 1826.
6
Miranda, João. O papel da Assembleia da República na construção europeia, Coimbra: Coimbra Editora, 2000: 16.
Macedo, Jorge Braga de. "Acompanhamento e apreciação parlamentar dos assuntos europeus," Legislação: Cadernos
de Ciência de Legislação, No. 13-14, 1995: 158.
8
This heading is based on: Miranda, Jorge. Manual de direito constitucional, Tome 1, Coimbra: Coimbra Editora,
1996: 260-324; Canotilho, Gomes. Direito constitucional e teoria da constituição, Coimbra: Almedina, 2002: 127-188;
Cunha, Paulo Ferreira de. Para uma história constitucional do direito português, Coimbra: Almedina, 1995.
7
2
In 1826, the successor to the throne, King Pedro IV of Portugal, who had stayed in Brazil
after Napoleon's defeat and coronated himself the Emperor of Brazil, used his less than three
months of reign as King of Portugal to grant a new constitution, the Constitutional Charter (Carta
Constitucional), after which he abdicated the throne to his minor sister Maria, who became Maria
II, the Queen regent of Portugal. Through the Charter, Pedro sought to reconcile the liberals and
royalists. The Charter entrusted legislative power to a bicameral parliament. The upper house was
the Chamber of Peers and consisted of life and hereditary peers and clergy appointed by the
monarch. The lower house was the indirectly elected Chamber of Deputies. The executive power
was exercised by the ministers of the government. The monarch held the moderative power and
retained an absolute veto over all legislation. However, in 1828, two years after the Charter's
birth, Pedro's brother Miguel, who had already rebelled against his father in support of the
absolutist cause, usurped power in Portugal, dissolved both houses of parliament and had himself
proclaimed King. Pedro then left Brazil to fight Miguel and the ensuing war between them was
called the War of the Two Brothers or the Portuguese Civil War. In 1834, the liberals led by
Pedro came out victorious, whereupon the Constitutional Charter was restored and Queen Maria
II resumed her reign. In 1836, the rift that had boiled between moderate and radical liberals over
the constitutional system ended in the so-called September Revolution, when the radical liberals
abolished the Charter and restored the Constitution of 1822.
As a compromise solution, a new constitution was adopted in 1838. The sovereignty
remained with the nation and a three-branch government was established. The legislative power
was entrusted to a bicameral parliament. The upper house was the Chamber of Senators,
composed of leading citizens, i.e. notables. The lower house was the directly, albeit not
universally, elected Chamber of Deputies. Despite the abolition of the moderative power, the
monarch's constitutional position was reinforced. Yet the conflicts between the radical and
moderate factions of the liberals persisted. In 1841, the moderates led by Costa Cabral carried out
a bloodless coup d'état and replaced the Constitution of 1838 with the Constitutional Charter.
Over the following period, the radicals, on the one hand, became known as historicals and later as
progressives, and the moderates, on the other, were named regenerators because of their initiative
to reform the Charter through amendments. By mere tacit agreement, these two liberal factions
alternated in government at regular electoral intervals. This practice, named rotativismo, provided
a degree of governmental stability until the end of the nineteenth century.
The failure of rotativismo at the turn of the twentieth century, the factionalism among the
regenerators and historicals, and the emergence and rapid political success of the republican party
portended the collapse of the monarchy. To counter the republican dissent, King Carlos I
dissolved the parliament and appointed João Franco as Prime Minister, who established an
authoritarian government in 1907. The consternation of the republicans then reached climax. In a
street attack on the royal family in 1908, King Carlos I and his younger son were assassinated.
The older son survived and became King Manuel II. In what is known as the revolution of 5
October 1910, the Portuguese army colluded with the mutinous warships guarding the gates of
Lisbon and shelled the royal palace, which forced the royal family into exile. This coup d'état
marked the end of the royal House of Bragança and of the Portuguese monarchy.
With the adoption of the Constitution of 1911, Portugal became a republic. The
legislative power was entrusted to a bicameral Congress of the Republic. The upper house was
the indirectly elected Senate and the lower house was the directly elected Chamber of Deputies.
The executive power resided in a government, composed of a cabinet and a prime minister
politically responsible to the Congress, and in a president of the republic appointed by the
Congress. The republican form of government did not, however, bring stability. During its 15
years and 8 months of existence, the First Portuguese Republic generated some 45 governments,
suffered two periods of military rule and a small-scale civil war instigated by the monarchists.
These occurrences, alongside the conflict with the church and poor economy, brought the
republic into disrepute. The final outburst of dissatisfaction came in the form of a bloodless
3
military coup on 28 May 1926, which put and end to the First Republic and set out the National
Dictatorship that would last almost half a century.
In 1932, the Portuguese military appointed as Prime Minister António Salazar, who
gained public acclaim as finance minister through a successful recovery of the Portuguese
economy. The transition to the authoritarian regime was completed a year later by the adoption of
the Constitution of 1933. The Second Republic, which Salazar dubbed the New State (Estado
Novo), was born. Formally the first corporate constitution in the world, this constitution vested
the executive power in a president of the republic, directly elected until 1959, and charged him
with appointing a prime minister and the cabinet on the prime minister's recommendation. The
government was politically responsible to the president of the republic. The legislative power was
vested in a directly elected National Assembly, albeit that it could not initiate legislation that
would entail new expenditure or the reduction of state income. A consultative Corporate Chamber
consisted of representatives of provinces and municipalities, universities and schools, syndicates,
and various economic, social, and cultural organizations. In practice, Salazar exercised both
executive and legislative powers and controlled the police and local administration. He banned all
political parties but his own National Union. Elections were, therefore, held without opposition
and the Assembly was composed of members of Salazar's party. All of this qualified the New
State as Salazar's personal dictatorship. In 1968, when Salazar suffered a incapacitating stroke,
President Americo Tomás removed him from power and appointed Marcelo Caetano, who turned
the New State into the Social State and introduced meager reforms in the electoral system. This
was insufficient to halt the decline of the regime. The mounting resentment, fuelled by the
Colonial War waged against the independence movements in the colonies of Angola,
Mozambique and Guinea, as well as by the repression of basic civil and political freedoms,
culminated on 25 April 1974, when the Armed Forces Movement carried out a coup d'état known
as the Revolution of Carnations. The decades-long dictatorship ended with the adoption in 1976
of the currently applicable constitution. Democracy and civilian rule had thus arrived in the
Portuguese Third Republic. A crucial product of the perpetual political contest in Portugal was
the resurrection of a representative body – the Assembly of the Republic.
3. THE ASSEMBLY OF THE REPUBLIC IN THE CONSTITUTIONAL ORDER OF PORTUGAL.
The Constitution of 1976 (the Constitution) is the embodiment of popular indignation
over Salazar's regime. The Preamble describes this regime as "fascist" and celebrates the freeing
of Portugal from "dictatorship, oppression and colonialism" as a "historic turning point for
Portuguese society".9 As a corollary, the Constitution contains a catalogue of fundamental rights
and is replete with democratic symbols. The Third Portuguese Republic is a "democratic state
based on the rule of law, the sovereignty of the people, plural democratic expression and
organisation, respect for and the guarantee of the effective implementation of fundamental rights
and freedoms, and the separation and interdependence of powers, all with a view to achieving
economic, social and cultural democracy and deepening participatory democracy".10 As
immutable, the Constitution designates inter alia the unity of the state, the republican form of
government, the system of proportional electoral representation, separation and interdependence
of powers, etc.11
9
Recitals 1 and 2 of the Preamble of the Constitution.
Article 2 of the Constitution. See also Articles 1 and 3 thereof. Furthermore, Article 9(c) lays down that one of the
fundamental tasks of the Portuguese state is to "defend political democracy and safeguard and encourage citizens’
democratic participation in the resolution of national problems". Also, Article 108 requires that "political power shall
lie with the people[…]". Article 111 enshrines the separation and interdependence of powers.
11
Article 288 of the Constitution.
10
4
The Portuguese system of government has been described variously as semipresidential,12 premier-presidential,13 parliamentary-presidential,14 or "presidentialism of the
Prime Minister"15. The fact that each of these academic appellations for the Portuguese system of
government tends to accentuate one element of the system over another represents both their
merit and their drawback. As the system of government of any political community is implicit is
the formal relations between the offices of public power, we proceed with a description of these
relations in order to understand the constitutional position of the Assembly. The state bodies
exercising national sovereignty are the President of the Republic, the Assembly of the Republic,
the Government and the Courts.16 With the exception of the courts, we examine them in turn.
The President of the Republic (the President) is elected by direct universal suffrage17 for
the period of five years18 and guarantees the proper functioning of the democratic institutions.19
The President appoints the Prime Minister after consulting the parties represented in the
Assembly and in the light of the electoral results, and other government ministers upon the Prime
Minister's proposal.20 The President's function of 'democracy guarantor' means that he or she may
not remove the Government at will, but only where it is necessary for the proper functioning of
the democratic institutions and upon consulting the Council of State.21 Yet it is the Government's
administrative responsibility to "defend the democratic rule of law".22
In the legislative sphere, the President enjoys the right to veto both draft Assembly
legislation and draft government decrees. The President must provide reasons for his or her
decision to use veto. However, only the Assembly may override the veto. If the Assembly
approves the vetoed bill by an absolute majority of the votes of all the Members entitled to vote,
the President must enact it.23 Yet by refusing to enact or sign them, the President may block a
wide array of draft legislative acts, such as laws, decree laws, regulatory decrees, Assembly
resolutions approving international agreements, and government decrees.24 Moreover, the
President is obliged to use veto where the Constitutional Court has found an act or international
treaty unconstitutional.25 Furthermore, upon consulting the Council of State and the parties
represented in the Assembly, the President may dissolve the Assembly, except during the periods
12
Martins, Ana. "The Portuguese semi-presidential system: about law in the books and law in action," European
Constitutional Law Review, Vol. 2, No. 1, 2006: 81-100.
13
Roper, Steven D. "Are all semipresidential regimes the same? A comparison of premier-presidential regimes,"
Comparative Politics, Vol. 34, No. 3, 2002: 253-272.
14
Lunshof, Hans. "The Portuguese Republic," in Constitutional law of 15 EU Member States, by Lucas Prakke and
Constantijn Kortmann (eds), Deventer: Kluwer Law International, 2004: 668.
15
Moreira, Adriano. "O regime: presidencialismo do Primeiro-Ministro," in Portugal: o sistema pólitico e
constitucional 1975-1987, by Mário Baptista Coelho (ed), Lisboa: Instituto de Ciências Sociais da Universidade de
Lisboa, 1989: 31-39.
16
Article 110(1) of the Constitution.
17
Article 121(1) of the Constitution.
18
Article 128(1) of the Constitution.
19
Article 120 of the Constitution.
20
Articles 133(f) and (h) and 187 of the Constitution.
21
Article 195(2) of the Constitution. The Council of State is the political body that advises the President. It is chaired
by the President, and besides him or her, gathers the President of the Assembly, the Prime Minister, the President of the
Constitutional Court, the Ombudsman, the presidents of the regional governments, the former Presidents of the
Republic that were elected under the Constitution of 1976 and were not removed from office, then five citizens
appointed by the President, and five citizens elected by the Assembly. The main responsibility of the Council of State is
to give opinions to the President on a variety of issues foreseen by the Constitution. See Articles 141 et seq of the
Constitution.
22
Article 199(f) of the Constitution.
23
Article 136(1)-(2) of the Constitution.
24
Article 137 in conjunction with Article 134(b) of the Constitution.
25
Article 279(1) of the Constitution.
5
of six months following parliamentary elections, six months prior to the end of the President's
term of office, or during the states of siege or emergency.26
The Assembly of the Republic (the Assembly) is the unicameral parliament of Portugal
representing all Portuguese citizens. It consists of a minimum of 180 and a maximum of 230
members directly elected for a period of four years according to the proportional electoral
system.27 Enacting thresholds for the conversion of votes obtained in elections into seats in the
Assembly is constitutionally prohibited.28 Assembly members may not concomitantly be
government members.29 Regarding the Government's accountability, it is the Assembly's
competence to scrutinize, i.e. consider, the Government's programme and the actions of the
Government and public administration.30 Assembly members have the rights to question the
Government about any of the acts of the Government or public administration and to obtain
answers within a reasonable time period; then to request and receive from the Government any
information or document that it deems useful for the exercise of their electoral mandate; to form
committees of inquiry;31 and ultimately, to vote on motions of confidence in the Government.32
For the purposes of political accountability, Government members shall attend the Assembly
sittings specially convened for the purposes of scrutiny. When asked, they are also obliged to
appear before parliamentary committees, although they may also ask to participate in committee
proceedings on their initiative. In addition, Government members have the right to attend and
speak during plenary sessions of the Assembly.33 The bulk of the Assembly's competences
regarding the Government's accountability is exercised by its Standing Committee.34
Legislative initiative rests with individual Assembly members, parliamentary groups, the
Government, and, under certain conditions, groups of 35000 registered voters.35 Legislative
competence is shared between the Assembly and the Government. The areas falling under the
Assembly's exclusive legislative competence, where legislative power may not be delegated to
the Government, and those falling under its partially exclusive legislative competence, where
legislative power may be delegated to the Government by means of an authorising statute, are
exhaustively enumerated in the Constitution.36 The only area of exclusive legislative competence
of the Government is that related to its own organisation and functioning.37 The remaining areas
are the Assembly's and the Government's concurrent competence, where the Government does
not require the Assembly's authorization to adopt decree-laws.38 Legislative procedure comprises
the debating and the voting phase. The debate on a bill concerns the general principles and the
details of the bill, the latter of which may be carried out in a committee. After the votes on
general principles and on details, bills are subjected to a final overall vote.39 There are three types
of legislation: (a) lei or law, i.e. statute; (b) decreto-lei or decree-law; and (c) decretos legislativos
regionais or regional legislative decrees. Statutes are always initiated by the Assembly and are
26
Articles 133(e) and 187 of the Constitution.
Articles 147, 148, 113(5), 114(1), and 149(1) of the Constitution.
28
Article 152(1) of the Constitution.
29
Article 154(1) of the Constitution.
30
Article 163(d) and 162(a) of the Constitution.
31
See Lei no. 5/93 of 1 March 1993.
32
Articles 156(d)-(f), 163(e), and 178(1) of the Constitution.
33
Article 177 of the Constitution.
34
The Standing Committee is chaired by the President of the Assembly and, besides him or her, is composed of the
Vice-Presidents of the Assembly and of members nominated by each parliamentary party in proportion to the number
of seats. See Article 179 of the Constitution.
35
Article 167(1) of the Constitution in conjunction with Article 6(1) of the Lei no. 17/2003 of 4 June 2003 regulating
the citizens' legislative initiative.
36
Articles 164 and 165 of the Constitution.
37
Article 198(2) of the Constitution.
38
Article 198(1)(a) of the Constitution.,
39
Article 168(1)-(3) of the Constitution.
27
6
classified into several categories: ordinary, constitutional, organic, framework or general.40
Decree-laws are always initiated by the Government and have the same legal force as statutes.
That notwithstanding, decree-laws are hierarchically subordinate to statutes because they may,
upon their publication and by means of a motion adopted by ten Assembly members, be subjected
to parliamentary consideration aimed at their amendment or nullification.41
The Government conducts the state's general policy and is headed by a Prime Minister. It
consists of a Council of Ministers, Secretaries of State, and Under Secretaries of State. The
Council of Ministers is composed of the Prime Minister and ministers, and possibly one or more
Vice Prime Ministers. To assume office, the Government, upon being appointed by the President,
is subjected to the parliamentary procedure of consideration of its programme. This programme
sets out the main political guidelines and measures that the Government intends to pursue and the
Prime Minister presents it in the Assembly in the form of a statement. During the debate on the
programme, any parliamentary group may move the rejection of the programme and the
Government itself may move a vote of confidence. The programme is rejected if any of these
motions is adopted by an absolute majority of the members entitled to vote.42 Therefore, the
Government need not pass a vote of approval in the Assembly, unless the Government or the
Assembly move initiatives to the contrary.43 Before the Assembly considers its programme, the
Government may only undertake acts that are strictly necessary for the management of public
affairs.44 Once in office, the Government may move a vote of confidence regarding its statement
of general policy as well as any important matter of national interest.45 Similarly, a quarter of the
Assembly members entitled to vote or any parliamentary group may move a vote of no
confidence regarding the Government's implementation of its programme or any important matter
of national interest.46 Whenever a motion of confidence is rejected or a motion of no confidence
adopted, the Government must resign.47 The Government members comprising the Council of
Ministers are responsible both to the President and to the Assembly.48 However, they are
politically responsible only to the Assembly.49 The Government's political responsibility to the
Assembly is thus collective, as there is no procedure to oust an individual minister.50 State
Secretaries and Under Secretaries are responsible to their minister and to the Prime Minister.51
4. THE PORTUGUESE ASSEMBLY AND THE EUROPEAN UNION: A RISING STAR?
4.1. Democracy as the centerpiece of Portugal's relations with the European Union.
The Constitution contains several provisions on Portugal's relations with the European
Union (EU or the Union). In international relations, "Portugal shall make every effort to reinforce
the European identity and to strengthen the European states’ actions in favour of democracy,
40
See also Lunshof, Hans. "The Portuguese Republic," in Constitutional law of 15 EU Member States, by Lucas Prakke
and Constantijn Kortmann (eds), Deventer: Kluwer Law International, 2004: 687.
41
Article 169 of the Constitution.
42
Article 192 of the Constitution.
43
See also Lunshof, Hans. "The Portuguese Republic," in Constitutional law of 15 EU Member States, by Lucas Prakke
and Constantijn Kortmann (eds), Deventer: Kluwer Law International, 2004: 669.
44
Article 186(5) of the Constitution.
45
Article 193 of the Constitution.
46
Article 194 of the Constitution.
47
Article 195(1)(d)-(f) of the Constitution.
48
Article 190 of the Constitution.
49
Article 191(1)-(2) of the Constitution. See also Lunshof, Hans. "The Portuguese Republic," in Constitutional law of
15 EU Member States, by Lucas Prakke and Constantijn Kortmann (eds), Deventer: Kluwer Law International, 2004:
668.
50
Lunshof, Hans. "The Portuguese Republic," in Constitutional law of 15 EU Member States, by Lucas Prakke and
Constantijn Kortmann (eds), Deventer: Kluwer Law International, 2004: 668, 685.
51
Article 191(3) of the Constitution.
7
peace, economic progress and justice in the relations between peoples".52 The Constitution
explicitly permits Portugal's entry into "agreements for the exercise jointly, in cooperation or by
the Union’s institutions, of the powers needed to construct and deepen the European Union".53
Transfer of sovereignty or sovereign powers is not mentioned, which is consonant with the
constitutional principle that sovereignty is single and indivisible, vested in the people, and
exercised by them in the forms foreseen by the Constitution.54 Portugal's participation in the EU
is subject to the respect of the following three conditions: (a) reciprocity, (b) respect for the
fundamental principles of democratic state based on the rule of law, and (c) respect for the
principle of subsidiarity.55 Pursuant to the amendment of 2004,56 the Constitution establishes that
primary and secondary EU law apply in Portugal in accordance with Union law, under the
condition that the fundamental principles of democratic state based on the rule of law be
respected.57 The principle of democracy, therefore, occupies a central place in the legal regulation
of Portugal's membership in the European Union.
4.2. The Portuguese Assembly and EU decision making: towards new avenues of
participation?
A) Constitutional framework of the Assembly's EU competence.
The Portuguese Assembly derives several EU-related competences from the Constitution.
First, the Constitution establishes the Assembly's ex ante involvement in EU decision making by
providing that the Assembly shall make pronouncements on matters awaiting decision within EU
institutions in the sphere of its exclusive legislative competence.58 Second, it pertains to the
Assembly to supervise and consider Portugal’s participation in the process of constructing the
European Union.59 Third, for the purposes of fulfilling these two competences, the Government is
under a constitutional duty to submit to the Assembly information on the construction of the
European Union in good time.60 Fourth, following the amendment of 2005,61 the Constitution
guarantees the possibility of holding a referendum on the approval of a treaty aimed at
constructing or deepening the Union.62
B) Statutory and informal framework of the Assembly's EU competence.
52
Article 7(5) of the Constitution.
Article 7(6) of the Constitution. The aims of entering into agreements with the EU are to achieve economic, social
and territorial cohesion of an area of freedom, security and justice and to define and implement a common external,
security and defence policy.
54
Article 3(1) of the Constitution.
55
Article 7(6) of the Constitution.
56
Lei constitucional no. 1/2004 of 24 July 2004.
57
Article 8(4) of the Constitution.
58
Article 161(n) of the Constitution. Under Article 164 thereof, the following 21 areas fall under the Assembly's
exclusive legislative competence: national, regional and local elections; referendums; Constitutional Court; defence and
Armed Forces; states of siege and emergency; citizenship; territorial waters; political associations and parties; basic
elements of the education system; status and role of holders of offices established under the Constitution; local
authorities; restrictions on the exercise of rights by military, police, and security services; appointment of Portuguese
members of EU bodies, with the exception of the European Commission; intelligence system and state secrets; state,
regional, and local budgets; national symbols; finances of the autonomous regions; police forces and security services;
autonomy of the President of the Republic’s support services.
59
Article 163(f) of the Constitution.
60
Article 197(1)(i) of the Constitution.
61
Lei constitucional no. 1/2005 of 12 August 2005.
62
Article 295 of the Constitution.
53
8
1) Scope of scrutiny competence. The Assembly's EU competence has gradually
increased from that of participation in the definition of Community policies in 1987,63 to that of
monitoring of matters related to Portugal's participation in the European Communities in 1988,64
and to that of monitoring and assessment of Portugal's participation in the process of construction
of the European Union in 199465.
The current statutory regulation of the Assembly's EU competence is the Law on the
monitoring, assessment and pronouncement by the Assembly of the Republic within the scope of
the process of constructing the European Union of 2006 (European Scrutiny Act).66 This statute is
a concretisation of the aforesaid constitutional provisions and was prompted by a
recommendation issued by the Portuguese Ombudsman in 2005. The Ombudsman then called for
the statutory implementation of the constitutional provision obliging the Assembly to pronounce
itself on EU matters falling under its exclusive legislative competence. Although this provision
had been introduced by the constitutional amendment of 1997,67 it was then still not implemented.
In the Ombudsman's opinion, the legislator's silence amounted to unconstitutionality by
omission.68 The Assembly followed the Ombudsman's recommendation and enacted the
European Scrutiny Act the following year.
The European Scrutiny Act of 2006 foresees both ex ante and ex post instruments of the
Assembly's participation in secondary EU decision making, for which purpose there shall be a
regular consultation process between the Assembly and the Government.69 It is notable that,
concerning the Assembly's ex ante involvement, the European Scrutiny Act obliges the Assembly
to pronounce itself not only regarding draft EU legislation falling within the ambit of the
63
Lei no. 28/87 participação da Assembleia da República na definição das políticas comunitárias of 29 June 1987.
This statute laid down wide terms of reference for the Assembly's scrutiny of EU affairs. The Government was obliged
to send the Assembly not only draft regulations, directives, decisions, resolutions, Council reports, and programmes
and orientation documents of the Commission, but also all modifications of and deliberations on these documents
(Article 1(2)). The Government was obliged to consult the Assembly wherever an EU matter referred to the Assembly's
competence (Article 2(1)). An interesting institutional novelty was the envisaged Mixed Committee AssemblyEuropean Parliament (Comissão Mista Assembleia da República-Parlamento Europeu), which was motivated by the
wish to "stimulate the reinforcement of parliamentary institutions in the life of the European Communities, as well as
their solidarity, and to contribute to a better monitoring of the participation of Portugal in its activities [...]" (Article
5(1)).
64
Lei no. 111/88 acompanhamento da Assembleia da República em matérias relativas à participação de Portugal nas
Comunidades Europeias of 15 December 1988. This statute further widened the scope of information that the
Government was obliged to provide to the Assembly, chiefly adding to the existing list draft treaties and conventions to
be concluded by the Community within the ambit of its external relations, decisions of representatives of the
governments of the Member States, and draft non-binding acts (Article 1(2)(a)(b) and (d)). The Mixed Committee,
which had been foreseen a year before, was substituted with the format of regular meetings between the European
Affairs Committee and Portuguese MEPs (Article 5).
65
Lei no. 20/94 acompanhamento e apreciação pela Assembleia da República da participação de Portugal no
processo de construção da União Europeia of 15 June 1994. This statute again widened the scope of the Assembly's
right to obtain information from the Government to include "broad lines of economic, social, as well as sectoral
orientation" (Article 2(1)(e)). It established a regular process of consultation and exchange of information between the
Government and the Assembly (Article 1(2)). Reference to joint meetings with the European Parliament was dropped
and, instead, the European Affairs Committee was charged with intensifying the exchange with the European
Parliament, along with the possibility of creating mutual facilities (Article 4(2)(c)). Most importantly, this statute
introduced a scrutiny procedure whereby the European Affairs Committee would forward draft EU initiatives to
competent specialist committees for information or adoption of a reasoned opinion (parecer fundamentado). These
reasoned opinions did not, however, refer to the principle of subsidiarity. Upon receipt of the specialist committee's
reaction, the European Affairs Committee could adopt a report (relatório) for the Government's consideration or a draft
resolution for the plenary (Article 5).
66
Lei no. 43/2006 acompanhamento, apreciação e pronúncia pela Assembleia da República no âmbito do processo de
construção da União Europeia of 25 August 2006 (European Scrutiny Act).
67
Lei constitucional no. 1/97 of 20 September 1997.
68
Recomendação no. 6/B/2005 of 22 June 2005.
69
Articles 1(2) of the European Scrutiny Act and 261(2) of the Rules of Procedure of the Assembly no. 1/2007 of 1
September 2007 (Regimento da Assembleia da República).
9
Assembly's exclusive legislative competence but also regarding documents containing guidelines
for EU policies and measures, both of which can be initiated by the Assembly and the
Government.70 This is a wide-ranging competence because it encompasses both legislative and
non-legislative EU initiatives in all policy fields, formerly called pillars.71
Subsequently, the goals pursued by the European Scrutiny Act were fortified under a
broader parliamentary reform passed in 2007, which sought to transform the Assembly into "a
Parliament that is accountable to and close to the citizens, a more transparent Parliament that sets
an example, and a Parliament that plays a more active role in the construction of Europe and the
world".72 Below we analyse the Assembly's scrutiny competence regarding some of the Union's
non-Community fields of action.
For the Assembly, the transfer of Third Pillar matters to the First Pillar affects its scrutiny
insofar as new proposals falling under these areas come within the terms of the Barroso initiative
and are directly transmitted by the Commission. This "would formally enhance the Parliament to
have a saying" in accordance with the European Scrutiny Act.73 No differentiation in scrutinising
the substance of such proposals is envisaged. In other words, not only will the Assembly not
resign on its competence of scrutiny because the European Parliament will gain competence in
the transferred policy areas, but its scrutiny potential will be reinforced.
As regards the Common Foreign and Security Policy (CFSP) and the European Security
and Defence Policy (ESDP), the Assembly passed in 2003 the Law regulating the assessment by
the Assembly of the Republic of the involvement of Portuguese military contingents abroad.74
Under this statute, the Government shall, prior to deploying Portuguese military troops abroad,
communicate its decision to do so to the Assembly for the purposes of ex ante assessment and
post facto monitoring. The Government shall submit two types of reports to the Assembly: a
semester report on the involvement of the Portuguese military abroad and a final report within 60
days of the termination of a mission. Within the Assembly, scrutiny of these reports is the
competence of the National Defence Committee. The Standing Orders of this Committee
expressly envisage its duty to monitor and assess Portugal's participation in the construction of
the European Union in areas falling under its portfolio and to take part in periodic meetings with
counterpart parliamentary committees from other Member States.75 The Assembly scrutinises
joint actions, common positions, and recommendations for common strategies by way of "overall
assessment of CFSP".76 Although no specific arrangements exist in the Assembly for scrutinising
civilian ESDP missions,77 regular meetings that the National Defence Committee holds with the
National Defence Ministry also address questions related to the Union's civilian or military
actions.78
70
Article 4(2) of the European Scrutiny Act.
Assembly of the Republic. "European Affairs Committee – Assembleia da República – Portugal", Lisbon, 2007: 5,
17.
72
COSAC Secretariat, Annex to the 12th bi-annual report on developments in European Union procedures and
practices relevant to parliamentary scrutiny: replies of national parliaments and the European Parliament, prepared for
XLII Conference of Community and European Affairs Committees of Parliaments of the European Union held in
Stockholm, 5-6 October 2009, at 104.
73
COSAC Secretariat, Annex to the 6th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXVI COSAC meeting held in Helsinki, 19-21 November 2006, at 173.
74
Lei no. 46/2003 Lei que regula o acompanhamento, pela Assembleia da República, do envolvimento de contingentes
militares portugueses no estrangeiro of 22 August 2003.
75
Articles 3(e) and 4(j) of the Standing Orders of the National Defence Committee of 17 November 2009.
76
COSAC Secretariat, Annex to the 4th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXIV COSAC meeting held in London, 9-10 October 2005, at 107.
77
COSAC Secretariat, Annex to the 4th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXIV COSAC meeting held in London, 9-10 October 2005, at 108.
78
COSAC Secretariat, Annex to the 5th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXV COSAC meeting held in Vienna, 22-23 May 2006, at 57.
71
10
With respect to the Union's external relations, the Assembly does not hold the
Government to account for its negotiations within the competent EU institutions. It scrutinises
neither international agreements falling under the exclusive competence of the EU, such as
common commercial policy, nor those falling under the shared competence. However, at any time
during the negotiations, the Committee for Foreign Affairs and Portuguese Communities may
resort to regular mechanisms of political accountability of the Government.79 In relation to the
treaties of accession to the Union of new Member States, there is no systematic parliamentary
practice of scrutiny of these treaties, which means that the Assembly's intervention occurs at the
phase of approval of a given accession treaty and follows the same approval procedure as all
other treaties.80
Finally, the Assembly is "not directly involved" in the processes of Open Method of
Cooperation, but recognises that they allow both access to comparative statistics for different
Member States as well as the monitoring of what their respective governments are planning in the
fields of employment, growth, training, new technologies, the knowledge society, cutting red
tape, etc.81 By the same token, recent changes in comitology procedures have not yet been
followed.82
2) Objectives of scrutiny. The main objective of the Assembly's EU scrutiny is to hold
the Portuguese Government politically to account for its positions in the Council. There is,
however, neither an intention nor a procedure of mandating the ministers. This scrutiny focus
stems from the constitutional link between the Assembly and the Government described above.
Besides the scrutiny of the Government, the European Affairs Committee is, by virtue of
the European Scrutiny Act, also charged with developing relations with EU institutions. This is to
be done by intensifying exchanges with the European Parliament and organising regular meetings
with interested MEPs, particularly those elected in Portugal; promoting meetings or hearings with
EU institutions, bodies and agencies on matters important to Portugal; promoting
interparliamentary cooperation within the EU; and appointing Portuguese representatives to
COSAC and assessing its results.83 The right of the European Affairs Committee to invite
Portuguese MEPs to participate in its work is specifically foreseen in its Standing Orders.84
Another noteworthy aspect of the European Affairs Committee's work is the organisation of
public debates and hearings on European topics with representatives of civil society, with the aim
of contributing to the creation of a public European forum at the national level.85
Maintaining contact with EU institutions is, thus, a "complementary" way of participating
in EU affairs,86 since "the Parliament's monitoring can include the activities of all EU institutions
that it deems relevant for the scrutiny procedure, and can refer both to legislative and nonlegislative proposals".87 In fact, due to the fact that the Government's negotiation position is
79
COSAC Secretariat, Annex No. 1 to the 10th bi-annual report by COSAC: replies to the questionnaire by the national
parliaments and the European Parliament, prepared for XL COSAC meeting held in Paris, 3-4 November 2008, at 114.
80
COSAC Secretariat, Annex to the 9th bi-annual report by COSAC: replies to the questionnaire by the national
parliaments and the European Parliament, prepared for XXXIX COSAC meeting held in Bled-Brdo pri Kranju, 7-8
May 2008, at 178-179.
81
COSAC Secretariat, Annex to the 8th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXVIII COSAC meeting held in Estoril, 14-16 October 2007, at 115.
82
COSAC Secretariat, Annex to the 6th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXVI COSAC meeting held in Helsinki, 19-21 November 2006, at 173.
83
Article 6(2)(g)-(j) of the European Scrutiny Act.
84
Article 4(2) of the Standing Orders of the European Affairs Committee of 18 November 2009 (Regulamento da
Comissão de Assuntos Europeus).
85
Article 6(2)(m) of the European Scrutiny Act.
86
Interview with Bruno Dias Pinheiro, clerk in the European Affairs Committee of the Portuguese Assembly, Lisbon, 8
June 2010.
87
COSAC Secretariat, Annex to the 13th bi-annual report on developments in European Union procedures and practices
relevant to parliamentary scrutiny: replies of national parliaments and the European Parliament, prepared for XLIII
COSAC meeting held in Madrid from 31 May - 1 June 2010, at 394.
11
typically not yet defined or is otherwise unavailable by the time parliamentary scrutiny
commences, "parliamentary scrutiny is in practice directed primarily at documents from
European institutions, and especially those dealing with European Commission initiatives".88 That
notwithstanding, while most of the scrutinised documents do originate from the Commission, the
Government is the primary addressee of scrutiny in terms of steps taken or positions adopted.
Neither the Commission nor the Government should, therefore, be regarded as the prevalent
addressee of parliamentary scrutiny.89
3) Actors of scrutiny. Within the Assembly, three bodies are responsible for EU
scrutiny: the European Affairs Committee, specialist parliamentary committees competent for
different policy fields, and the plenary of the Assembly. The central organ of overall scrutiny of
EU matters is the European Affairs Committee (Comissão de Assuntos Europeus). It is composed
of Assembly members in proportion to the number of seats held by parliamentary groups.90
Permanent subcommittees and working groups may be established within the European Affairs
Committee.91 Competent specialist committees assist the scrutiny process primarily by carrying
out substantive scrutiny, i.e. scrutiny of the contents, of draft EU proposals and by preparing
reports and opinions for the European Affairs Committee. Despite its umbrella competence,92 it is
the European Affairs Committee who ultimately decides about the action to be undertaken
pursuant to the results of scrutiny and especially whether, and if so, which documents to submit to
the plenary. In reaching this decision, the European Affairs Committee may accept, modify or
reject any report, opinion or recommendation of the specialist committees.93 The plenary debates
and votes on the motions for resolutions sent to it by the European Affairs Committee and holds a
variety of EU-related debates.
4) Process of scrutiny. The European Affairs Committee distributes draft EU proposals
and consultation documents both among its own members and among the competent specialist
parliamentary committees for the purposes of information or adoption of a formal written
opinion. Unless the European Affairs Committee specifically requests their opinion, specialist
committees freely decide whether to draft a report, adopt a formal written opinion, draw up
concrete proposals, prepare all of these documents for the European Affairs Committee's
consideration, or remain silent on the matter altogether. When a scrutiny document of the
specialist committee arrives in the European Affairs Committee, the latter committee decides
about the effect to be given to it. For any document that it wishes to submit to the plenary, the
European Affairs Committee may designate, among its members, one or more rapporteurs
(deputado relator) for the purpose of drafting a report or formal written opinion,94 which – if
adopted – are sent to the President of the Assembly and to the Government. The Committee may
also decide to adopt a motion for a resolution of the Assembly and send it to the plenary for
debate and voting.95
It should be underlined that the Rules of Procedure of the Assembly assigns relative, as
opposed to absolute, priority to the scrutiny of Portugal's participation in the construction of the
EU.96 It also envisages that each bill should be accompanied by a technical note (nota técnica)
88
COSAC Secretariat, Annex to the 8th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXVIII COSAC meeting held in Estoril, 14-16 October 2007, at 111.
89
COSAC Secretariat, Annex to the 8th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXVIII COSAC meeting held in Estoril, 14-16 October 2007, at 111.
90
Article 1(2) of the Standing Orders of the European Affairs Committee in conjunction with Article 29(1) of the Rules
of Procedure of the Assembly.
91
Articles 24-31 of the Standing Orders of the European Affairs Committee.
92
Articles 6(1) of the European Scrutiny Act and 2 of the Standing Orders of the European Affairs Committee.
93
Interview with Bruno Dias Pinheiro, clerk in the European Affairs Committee of the Portuguese Assembly, Lisbon, 8
June 2010.
94
Article 16(1) of the Standing Orders of the European Affairs Committee.
95
Articles 7 of the European Scrutiny Act and 15 of the Standing Orders of the European Affairs Committee.
96
Article 62(3)(c) of the Rules of Procedure of the Assembly.
12
drafted by the Assembly's staff. Whenever possible, such a note should include information about
the legal and doctrinary framework of the topic of the bill not only at the national level but also at
the European and international levels. A list of other pending national and Community initiatives
on the same subject matter should be enclosed.97
5) Information for scrutiny. To aid the Assembly's fulfillment of the task of EU
scrutiny, the Government is obliged to send information on EU affairs to the Assembly. The
Government shall keep the Assembly duly informed about the issues and positions to be
discussed by EU institutions, proposals under discussion, and ongoing negotiations; and shall
send the Assembly all the relevant documents as soon as they reach the Council. The documents
listed exempli causa in the European Scrutiny Act are: draft treaties to be concluded by the Union
or between the Member States within the framework of the Union; proposals for binding and nonbinding acts; other draft legal acts, particularly decisions by representatives of the governments of
the Member States meeting in the Council; the Commission's annual policy strategies, legislative
and working programmes, or other instruments of legislative programming; legislative resolutions
on joint positions adopted by the Council; passerelle authorisations granted to the Council;
agendas and results of Council sessions, including the minutes of sessions at which the Council
takes decisions on legislative proposals; reports on the application of the principle of subsidiarity;
consultation documents; major economic, social and other guidelines; and annual reports of the
European Court of Auditors.98 Virtually all of these documents are also provided to the Assembly
directly by the Commission too, which will be examined under a separate heading below.
6) Instruments of scrutiny. The Assembly's main scrutiny instruments are: reports,
formal written opinions, reasoned opinions on subsidiarity, resolutions, and debates and meetings
on EU issues. We analyse them in turn.
1. Report (relatório). Reports are prepared both by specialist parliamentary committees
and by the European Affairs Committee. They examine the contents of proposals under scrutiny
and provide a summary of and conclusions about a given proposal.99 They typically furnish a
basis for the adoption of a formal written opinion.
2. Formal written opinion (parecer). The Assembly is statutorily obliged to adopt a
formal written opinion whenever an EU proposal pending before the EU legislator falls within the
ambit of its exclusive legislative competence.100 The Government is under a statutory duty to
inform the Assembly of the existence of such proposals, invite it to issue a written opinion, and
provide it in good time with a summary of the proposal, an analysis of the proposal's
implications, and, if available, the position that it has taken. Written opinions are prepared by the
European Affairs Committee in consultation with competent specialist parliamentary committees.
Once formulated, written opinions are sent to the plenary for debate and voting. The Assembly
may prepare new written opinions in any other subsequent phase of EU decision making. With
respect to non-legislative, non-binding or consultative EU documents that do not fall within the
ambit of its exclusive legislative competence, the Assembly may but need not formulate formal
written opinions and the Government need not inform the Assembly of such initiatives.
The European Scrutiny Act prescribes that in case of urgency the adoption of the opinion
by the European Affairs Committee suffices. However, due to insuperable time constraints
experienced in the context of COSAC subsidiarity checks, the Assembly reached a political
consensus that any scrutiny document issued by the European Affairs Committee should,
97
Article 131(2)(b)-(c) of the Rules of Procedure of the Assembly.
Article 5(1) of the European Scrutiny Act.
99
Article 16(5) of Standing Orders of the European Affairs Committee.
100
Articles 1(1), 2 and 6(2)(b) of the European Scrutiny Act. For the areas falling under the Assembly's exclusive
legislative competence see supra note 58.
98
13
regardless of the existence of circumstances of urgency, be regarded as representing the view of
the entire Assembly.101
It should be stressed that although there is formally no scrutiny reserve, the Government's
obligation to obtain the Assembly's formal written opinion on a given EU initiative sometimes
practically functions as a scrutiny reserve. For example, during Council negotiations on the PNR
Framework Decision, the Government gave its informal agreement to this proposal, but it
withheld its formal agreement pending the receipt of the Assembly's opinion. This caused
disenchantment among Assembly members because the Government had in advance frustrated
the Assembly's meaningful pronouncement.102
3. Reasoned opinion (parecer fundamentado). In accordance with the Lisbon Treaty and
the Protocol on the application of the principles of subsidiarity and proportionality appended
thereto, the Assembly may send the Presidents of the European Parliament, the Council, and the
Commission reasoned opinions stating why a draft EU initiative, or any subsequent amendment
thereof, fails to comply with the principle of subsidiarity. Reasoned opinions are only adopted
regarding EU documents that fall within the ambit of the shared competence of the Union.
Reasoned opinions take the form of a resolution, except in case of urgency, when a written
opinion of the European Affairs Committee suffices.103 The caveat related to urgency of formal
written opinions applies mutatis mutandis.
4. Resolution. As the most effective instrument in its scrutiny arsenal, the Assembly may
adopt resolutions regarding both proposals falling within its exclusive legislative competence and
any other document emanating from EU institutions, such as, for instance, green and white
papers, strategic guidelines, communications, etc.104 Resolutions are always adopted by the
plenary.
5. Debate. A number of Assembly debates concern EU issues.105 First, a plenary debate is
held with the Government following the last European Council meeting of each EU Presidency.
Second, as an increasingly important tool of ex ante involvement, the debate in the first half of
the year may analyse the Commission's annual policy strategy and that in the second half of the
year the Commission's legislative and work programme. Third, in accordance with the
Government's duty to lay before the Assembly an annual report on the EU decisions that have had
the greatest impact on Portugal in the previous year and on the measures that the Government has
taken as a result of those decisions,106 each year there is a plenary debate with the Government
about this report. The Assembly of the Republic or the Government may also instigate debates on
all other subjects under discussion at European institutions that fall within their areas of
responsibility.107 Fourth, after each COSAC meeting, including both plenary COSAC and the
meeting of COSAC chairpersons, the Chairman of the European Affairs Committee presents a
report. This report, together with any contributions or conclusions reached during the COSAC
meeting, is debated among the members of the European Affairs Committee and the issues
arising therefrom are duly taken into account in the work of the Assembly. As particularly useful
aspects of COSAC meetings, the Assembly singles out the exchange of best practices, such as
101
Interview with Bruno Dias Pinheiro, clerk in the European Affairs Committee of the Portuguese Assembly, Lisbon,
8 June 2010.
102
Interview with Bruno Dias Pinheiro, clerk in the European Affairs Committee of the Portuguese Assembly, Lisbon,
8 June 2010.
103
Article 3 of the European Scrutiny Act.
104
Articles 6(2)(e) and 7(5)-(6) of the European Scrutiny Act.
105
Article 4(1)(a)-(b) of the European Scrutiny Act.
106
Article 5(3) of the European Scrutiny Act.
107
Article (4)(4) of the European Scrutiny Act.
14
subsidiarity checks, then the exchange of views with Commissioners and Council members, but
also debates about issues other than subsidiarity, such as political aspects of EU initiatives.108
6. Meetings. In the weeks before and after European Council meetings, the European
Affairs Committee holds meetings with the Government. Similarly, in the week before or after
meetings of the Council of Ministers in its different configurations, there will be joint meetings
between the European Affairs Committee, the competent parliamentary committee, and the
member of the Government in charge of the matter at hand.109
The effects of all of these scrutiny instruments remain within the political sphere. There
are no legal sanctions for cases where the Government disregards the Assembly's views.
However, the described instruments are not futile. As the Assembly explains, where the
Government fails to comply with the Assembly's formal written opinions or resolutions, where it
fails to request their issuance by the Assembly in the first place, or where it fails to provide the
required information, the Assembly may resort to the following ex post political sanctions.
On the one hand, the Government is placed on "a political onus to provide sufficient
grounds so as not to be subject to widespread criticism, which in the last instance could
undermine the majority supporting it and trigger the more drastic forms of supervision such as a
motion of censure".110 The Assembly may also refuse to transpose directives that fall under the
Assembly's transposing competence or request assessment of the Government's decree-laws
transposing directives.111 With regard to primary Union law, the Assembly may refuse to approve
a treaty negotiated by the Government.112
On the other hand, the Assembly's influence on the Commission is limited to the
importance that the Commission decides to attach to the Assembly's reports, formal written
opinions or resolutions. The Assembly also ascertains that its influence on the Council of
Ministers and the European Parliament always remains indirect and is commensurate to the
influence that it is able to exert on the Government and Portuguese MEPs respectively.113
C) The reform of scrutiny procedures: taking the lead in ex ante involvement?
On 20 January 2010, the European Affairs Committee approved a new mechanism of
scrutiny of EU initiatives.114 It envisages three main types of scrutiny procedures: enhanced,
normal, and urgent scrutiny. All of these procedures refer to the initiatives of the Commission. If
an initiative does not originate from the Commission, the European Affairs Committee shall
decide whether to conduct scrutiny at all and, if it decides to, whether to involve the competent
parliamentary committee.
A. Enhanced scrutiny. This procedure is a product of the Assembly's positive experience
with the Barroso initiative and centers on the Commission's legislative and work programme.
Enhanced scrutiny begins with a pre-selection process using the criterion of political relevance of
108
COSAC Secretariat, Annex to the 13th bi-annual report on developments in European Union procedures and
practices relevant to parliamentary scrutiny: replies of national parliaments and the European Parliament, prepared for
XLIII COSAC meeting held in Madrid from 31 May - 1 June 2010, at 404.
109
Article 4(1)(c)-(d) of the European Scrutiny Act.
110
COSAC Secretariat, Annex to the 8th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXVIII COSAC meeting held in Estoril, 14-16 October 2007, at 112.
111
See more on the transposition of directives in Portugal in: Sousa, Marcelo Rebelo de. "A transposição das directives
comunitárias para a ordem jurídica nacional," Legislação: cadernos de ciência de legislação, No. 4-5, 1992: 69-94.
112
COSAC Secretariat, Annex to the 8th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXVIII COSAC meeting held in Estoril, 14-16 October 2007, at 112.
113
COSAC Secretariat, Annex to the 8th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXVIII COSAC meeting held in Estoril, 14-16 October 2007, at 112-113.
114
COSAC Secretariat, Annex to the 13th bi-annual report on developments in European Union procedures and
practices relevant to parliamentary scrutiny: replies of national parliaments and the European Parliament, prepared for
XLIII COSAC meeting held in Madrid from 31 May - 1 June 2010, at 394-396. See also Assembly of the Republic. "O
acompanhamento dos assuntos europeus na Assembleia da República e a entrada em vigor do Tratado de Lisboa",
available at: http://www.parlamento.pt/europa/Documents/Roadshow_altar_Parlamento.pdf, accessed on 10 June 2010.
15
an EU initiative for Portugal. Namely, each parliamentary committee prepares its annual report
on the Commission's legislative and work programme and notifies the European Affairs
Committee whether it intends to submit any Commission's initiative, whether legislative or not, to
enhanced scrutiny. Upon their receipt of these notices, the European Affairs Committee may
choose from among the initiatives pre-selected by specialist committees a maximum of six
initiatives per year for enhanced scrutiny. The European Affairs Committee will then, in
cooperation with the competent parliamentary committee, draft a broader work programme for a
given initiative. Enhanced scrutiny proceeds on the basis of this individual tailor-made scrutiny
programme. This programme should reflect the need to comply with the eight-week deadline for
submitting reasoned opinions on subsidiarity. If pre-selection does not yield any initiative or
yields less than six initiatives, the European Affairs Committee decides on which six or which
remaining initiatives will be closely monitored.
Scrutiny under the enhanced procedure includes a wide array of activities: an analysis of
the EU initiative; a request for clarification from the Government; obtaining information from EU
institutions; exchange of information with other national parliaments; hearings with the
competent Commissioner, the Presidency of the Council, and the MEP acting as rapporteur;
public hearings; gathering views from stakeholders; producing studies; etc.
All other initiatives, which the European Affairs Committee decides not to scrutinise
directly, go through the normal procedure.
B. Normal scrutiny. Upon receiving draft legislative and non-legislative initiatives from
the Commission, the European Affairs Committee forwards them to competent parliamentary
committees for information or adoption of a report with or without a formal written opinion. If it
decides to draw up a report, the competent committee must do so within 6 weeks from the date of
receipt of the Portuguese language version of the initiative. The report may examine issues of
substance, subsidiarity or proportionality. It is then sent back to the European Affairs Committee,
which drafts its own opinion within the ensuing two weeks. In order to prevent passivity on the
part of specialist committees, any Assembly member sitting on the European Affairs Committee
may require the committee competent for the matter in question to issue a report.
C. Urgent scrutiny. This procedure applies where the European Affairs Committee finds
out, through IPEX115 or through its permanent representative in Brussels, that a certain
Commission initiative has caused other national parliaments to have doubts about the compliance
of the initiative with the principle of subsidiarity. In these cases, the European Affairs Committee
will prepare its opinion and request, if it wishes to, the opinion of the competent parliamentary
committee.
D) Mastering the Barroso initiative: a new kind of coalition?
Since September 2006, the Assembly has been receiving draft EU proposals and
consultation documents directly from the Commission as part of the so-called Barroso initiative.
The Barroso initiative is a broad political dialogue between the Commission and national
parliaments on all aspects of the Commission's legislative or non-legislative initiatives.116 This
mechanism was partly formalized with the entry into force of the Lisbon Treaty in December
2009 in the form of a narrower procedure of the monitoring of compliance by EU institutions
with the principle of subsidiarity, informally dubbed 'early warning mechanism'.117 The Barroso
115
IPEX stands for Interparliamentary EU Information Exchange and is an online database established in July 2006. It
contains a complete catalogue of Commission documents from 2006 and parliamentary documents pertaining to the
national scrutiny of decisions taken at the EU level. Each national parliament uploads the information and documents
that it wishes to share with other national parliaments. See: http://www.ipex.eu.
116
In May 2006, the Commission announced its unilateral determination to send national parliaments all draft
proposals and consultation documents, which the European Council endorsed at its meeting in June 2006.
117
Article 7 of Protocol no. 2 on the application of the principles of subsidiarity and proportionality annexed to the
Lisbon Treaty.
16
initiative, therefore, includes dialogue not only on subsidiarity but also on proportionality, legal
basis, substance of draft proposals, political considerations, or any other aspect that a national
parliament wishes to draw the Commission's attention to.
For the Portuguese Assembly, this direct link with the Union's sole legislative initiator
did not merely represent a new source of information or a new tool for the amelioration of the
daily operation of its EU scrutiny. In the words of a clerk of the European Affairs Committee, "it
raised the profile of the Parliament vis-à-vis the Government".118 But how and why is this so?
In the wake of the adoption of the European Scrutiny Act, which coincided with the
outset of the Barroso initiative, the European Affairs Committee decided to pay special attention
to the political dialogue with the Commission. The reason for tailoring its scrutiny procedures
specifically to the purposes of the Barroso initiative was that it would allow the Assembly to
pronounce itself beyond subsidiarity, which, in the opinion of this Committee, "is not even the
most important aspect of EU legislation".119 In turn, direct receipt of information related to the
Commission's legislative activity reduces the Assembly's dependence on the Government. This
exchange of views and feedbacks prior to the legislative procedure both eviscerates the
Government's inherent privilege of timely possession of all relevant information and preempts its
occasional recourse to scapegoating practices, otherwise nurtured by the Union's multi-level
decision-making system.
Three key repercussions flow from this. First, since it is highly probable that the
Assembly will or can receive relevant information from the Commission, or sometimes from the
European Parliament, the Government can no longer prevent the Assembly from acting by
withholding information from it. Second, the Government can also not present negotiations in the
Council as fait accompli, because the Assembly will be in direct dialogue with the Commission
and will thus have the knowledge of the facts related to the EU legislative process, albeit
admittedly only of those that the Commission wish to share. Third, the Commission itself will be
able to counter the Government whenever the latter, during Council negotiations, abstractly uses
the Assembly as an excuse for strict adherence to its position. In these situations, the Commission
can invoke the Assembly's position obtained through the political dialogue and thereby reduce the
Government's room for manoeuvre.120
The procedure of political dialogue with EU institutions is further reinforced by the
Assembly's participation in COSAC and IPEX, as well as by its regular correspondence with
permanent parliamentary representatives in Brussels. An immediate fruit of the Assembly's newly
enthusiastic approach to EU affairs is borne out by the Commission's last report on the political
dialogue with national parliaments published in June 2010. According to the data presented in it,
Portugal is first on the list of the participating Member States with a total of 47 opinions sent in
2009, followed by the Czech Senate with 27 and the Dutch Houses of Parliament with 18. The
Portuguese Assembly is described as a "particularly active chamber" and one "with a particular
interest in subsidiarity questions".121 If one recalls the standpoint of the Portuguese European
Affairs Committee that subsidiarity is not the most significant element of its involvement in EU
decision making, then this surge in the number of opinions sent to the Commision might be
understood as evidence of a more comprehensive metamorphosis in its approach to EU scrutiny.
Interestingly, the European Affairs Committee has itself perceived that its shift towards more
118
Interview with Bruno Dias Pinheiro, clerk in the European Affairs Committee of the Portuguese Assembly, Lisbon,
8 June 2010.
119
Interview with Bruno Dias Pinheiro, clerk in the European Affairs Committee of the Portuguese Assembly, Lisbon,
8 June 2010.
120
Interviews with Bruno Dias Pinheiro held in Brussels on 27 May 2008 in his capacity as representative of the
Portuguese Assembly to the COSAC Secretariat as well as in Lisbon on 8 June 2010 in his capacity as clerk of the
European Affairs Committee of the Portuguese Assembly.
121
European Commission, Annual report 2009 on relations between the European Commission and national
parliaments, COM(2010) 291 final, 2 June 2010, at 2, 4 and 10.
17
frequent relations with EU institutions has actually resulted in "the neglect of its scrutiny of the
Government", which – as a pivotal element of the Assembly's function of political accountability
– will need to be bolstered.122
In addition to the Barroso initiative, the European Parliament sends the Assembly those
of its resolutions that are of relevance to national parliaments. As of September 2008, the
permanent representative of the Assembly to the EU,123 with the seat in Brussels, forwards to the
Assembly regular reports on parliamentary debates relating to the EU legislative process.124
5. CONCLUDING REMARKS.
The foregoing analysis shows that the Portuguese Assembly of the Republic has
undergone a quiet renaissance in its engagement in the Union's processes of policy and decision
making. This is a direct consequence of two factors: scrutiny reforms and the Barroso initiative.
That these two factors occurred almost contemporaneously only catalyzed this process.
A - Scrutiny reforms. The major added value of the establishment in 2006 of the system
of systematic scrutiny of EU affairs was that both the Assembly and the Government assumed
duties in the scrutiny process. On the one hand, the Government is obliged to submit information
to the Assembly and invite it to react and, on the other, the Assembly is obliged to pronounce
itself in the form of formal written opinions, reports or resolutions. Parliamentary scrutiny of EU
affairs in Portugal has, therefore, ceased to be a matter of the Government's willingness to involve
the Assembly.
These developments stand in stark contrast with the period preceding 2006, during which
the Assembly performed "loyal scrutiny"125 under the "system of informal influence"126 or
"system of information"127, which means that there was no systematic scrutiny of EU matters but
only limited supervision through meetings with the Government. As Filipe reports, the Assembly
then excessively depended on the Government for the availability of information and could not,
122
Interview with Bruno Dias Pinheiro, clerk in the European Affairs Committee of the Portuguese Assembly, Lisbon,
8 June 2010.
123
The Portuguese Assembly has had permanent representation in Brussels since 1 January 2007, first in the form of a
representative of the Assembly to the COSAC Secretariat, and as of 24 June 2008 in the form of a permanent
representative to the EU. The main task of the Assembly's representative in Brussels is to relay information about the
EU decision-making process as a "qualitative support" for the Assembly's EU scrutiny. Under the Regulation no.
354/2008 of 24 June 2008, the permanent representative's tasks are inter alia to set up a network of contacts with
European institutions, in particular with the European Parliament, COSAC Secretariat, and permanent representatives
of other national palriaments; then to monitor debates in the European Parliament and circulate the information thereof
to the Assembly; gather comparative information on parliamentary practices; prepare report at the request of the
Assembly's organs or offices; etc. The permanent representative to the EU is subject to the direct and sole supervision
and direction of the Secretary-General of the Assembly and shall, for this purpose, prepare a report on his or her work
prior to the end of each legislative session. COSAC Secretariat, Annex to the 11th bi-annual report on developments in
European Union procedures and practices relevant to parliamentary scrutiny: replies of national parliaments and the
European Parliament, prepared for XLI COSAC meeting held in Prague, 10-12 May 2009, at 213-215.
124
Assembly of the Republic. "O acompanhamento dos assuntos europeus na Assembleia da República e a entrada em
vigor do Tratado de Lisboa", available at:
http://www.parlamento.pt/europa/Documents/Roadshow_altar_Parlamento.pdf, consulted on 10 June 2010.
125
Fraga, Ana. "The Parliament of Portugal: loyal scrutiny and informal influence," in National parliaments on their
ways to Europe: losers or latecomers?, by Andreas Maurer and Wolfgang Wessels (eds), Baden-Baden: Nomos
Verlagsgesellschaft, 2001: 359-375.
126
COSAC Secretariat, Annex to the 12th bi-annual report on developments in European Union procedures and
practices relevant to parliamentary scrutiny: replies of national parliaments and the European Parliament, prepared for
XLII Conference of Community and European Affairs Committees of Parliaments of the European Union held in
Stockholm, 5-6 October 2009, at 106.
127
See Filipe, António. "A União Europeia e os parlamentos nacionais," Res Publica: Revista Lusófona de Ciência
Política e Relações Internacionais, No. 1, 2005: 69.
18
for this and some other reasons,128 exert any decisive parliamentary influence even in the fields of
its exclusive legislative competence.129 Ramos similarly argued that the existence of legal
mechanisms for parliamentary involvement in EU decision making did not translate into the
Assembly's "effective intervention".130 He underscored nonetheless that this evolution paved the
way for the Assembly's current scrutiny status.
The irregular nature of scrutiny was also a corollary of the internal process of democratic
consolidation, because it facilitated the entrenchment of the Government's preponderance over
the Assembly. The two legislatures with absolute majorities mustered by a single political party,
Social Democratic Party (Partido Social Democrata), represented a step further in subjugating
the Assembly to the Government's dominance.131 As a result of the changes implemented from
2006 onwards, the Assembly has asserted that its scrutiny system has become document-based,
albeit with elements of the procedural system regarding matters that fall under its exclusive
legislative competence.132
In 2010, the system of systematic scrutiny of EU Affairs was further sharpened by means
of prioritizing EU initiatives. Among the EU initiatives attracting the highest political relevance
for Portugal, six are selected for comprehensive 'enhanced scrutiny'. Novel is also the procedure
of 'urgent scrutiny', which may be launched where other parliaments express doubts with regard
to subsidiarity. These novelties demonstrate both the Assembly's determination to seriously
approach the scrutiny of the Commission's initiatives and its endorsement of the forums of
interparliamentary cooperation.
B – The Barroso initiative. The Assembly has taken full advantage of the Barroso
initiative and emerged as a leader in the political dialogue with the Commission. This has in turn
sparked the described proactive and reformative attitude in the Assembly. Direct links with the
Commission were supplemented with joint meetings and practices of exchange of documents
with the European Parliament. The significance of the burgeoning of new informal practices of
cross-level and cross-branch cooperation within the Union is nicely illustrated by the fact that the
principal innovation is no longer, as Ramos argued some 15 years ago,133 the regular exchange of
information with the Government but with the European Commission and, to a lesser extent, with
the European Parliament and other national parliaments.
While the Government has been and remains an important provider of information, the
Assembly has successfully commenced an 'informational emancipation' from the Government. In
its scrutiny, the Assembly no longer relies only on the information obtained from the
Government, and, insofar as the Assembly actively uses these new channels of information, either
directly to influence European policies and decisions or indirectly to hold the Government to
128
Another reason is the consensus between the political parties on the positive impact of European integration on
Portugal. As a consequence, European Union matters were not politicized, cleavages did not occur, and Europe was
largely left outside the Assembly's debate. See Paulo, Maria Teresa and Bandeira, Cristina Leston. "O impacto da
europeização no parlamento," Instituto português de relações internacionais, Universidade Nova de Lisboa, Working
Paper 21, http://www.ipri.pt/publicacoes/working_paper/pdf/Parlamento.pdf, accessed on 23 February 2008, at 6. See
also: Lobo, Marina Costa, "Portuguese attitudes towards EU membership: social and political perspectives," South
European Society and Politics, Vol. 8, No. 1, 2003: 97-118.
129
See Filipe, António. "A União Europeia e os parlamentos nacionais," Res Publica: Revista Lusófona de Ciência
Política e Relações Internacionais, No. 1, 2005: 71.
130
Ramos, Rui Moura. "O Parlamento Português no processo de criação da União Europeia," Leigslação: Cadernos de
Ciência de Legislação, No. 13-14, 1995: 185.
131
The two legislatures were the 5th legislature (1987-1991) and the 6th legislature (1991-1995). See more in: Bandeira,
Cristina Leston. "O impacto das maiorias absolutas na actividade e na imagem do parlamento português," Análise
Social, Vol. 31, No. 1, 1996: 151-181.
132
COSAC Secretariat, Annex to the 8th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXVIII COSAC meeting held in Estoril, 14-16 October 2007, at 113.
133
Ramos, Rui Moura. "O Parlamento Português no processo de criação da União Europeia," Leigslação: Cadernos de
Ciência de Legislação, No. 13-14, 1995: 182.
19
account more strenuously for its action in the Council of Ministers and the European Council, it is
plausible to argue that the Assembly's constitutional function has extended beyond its national
prescription.
On a larger scale, one is advised to revisit Filipe's thesis that national parliaments do not
seek to regain the powers lost throughout the European integration process in order to correct the
Union's democratic deficit or to control Community organs but instead in order to readjust the
balance between the organs of their own states and to compensate for the loss of control of their
own governments.134 While this is probably true, parliaments' European competences no longer
derive only from "a wide range of factors of the internal order".135 Nowadays, these competences
also derive from the founding treaties as amended by the Lisbon Treaty as well as from a host of
forums of parliaments' direct cooperation with EU institutions.
Direct links with EU institutions and their utilization for external or internal purposes
does not diminish the foremost importance of what continues to be the inextricable constitutional
tie between the Assembly and the Government. It does, however, mean this tie is becoming
endowed with another facet extraneous to the Portuguese constitutional order. It appears, after all,
that the Assembly has subscribed to an argument made in 1996 by its former Chairman Macedo
that "the European partnership […] derives from the equilibrium between the values of proximity
to the citizen, national legitimacy and accountability (imputabilidade)" and that national
parliaments bring plurality in the Union's system of popular representation.136
C – Value of the Assembly's reforms. One should warn against overestimating the
Assembly's accomplishments. The value of these accomplishments from a broader Union
perspective is best appraised in light of the views espoused by the Assembly itself and by the
Portuguese academia.
In reviewing the significance of the Lisbon Treaty provisions on national parliaments, the
Assembly assessed that "more important than what the text of the Treaty may guarantee to
national parliaments is what the new Treaty may offer the citizens […]".137 Thus, the Assembly
understands itself merely as one element of the Union's democracy. It is part of a larger
constitutional construct also borne by EU institutions, national organs of sovereignty, and
citizens.
On a similar note, Quadros argued that "the participation of national parliaments can
reinforce the democratic legitimacy of the Union, but it is not an essential condition to achieve
the Union's approximation to the citizens of the Member States […]".138 This author also
advocated against the creation of new decision-making organs in the Union in which national
parliaments would participate because it is not necessary, because it would destabilize the
existing institutional equilibrium, and because, in the final instance, "the Union has other more
urgent problems to worry about".139 This should not be read as meaning that the constitutional
relations between the Union and the Member States are conflictual. To the contrary, these
relations are rather cast in harmony, complementarity, interpenetration, and dialogue. These
characteristics do not only stem from a number of the Union's core principles – such as those of
134
Filipe, António. "A União Europeia e os parlamentos nacionais," Res Publica: Revista Lusófona de Ciência Política
e Relações Internacionais, No. 1, 2005: 63, 64, 67 and 69.
135
See Filipe, António. "A União Europeia e os parlamentos nacionais," Res Publica: Revista Lusófona de Ciência
Política e Relações Internacionais, No. 1, 2005: 65.
136
Macedo, Jorge Braga de. "Acompanhamento e apreciação parlamentar dos assuntos europeus," Legislação:
Cadernos de Ciência de Legislação, No. 13-14, 1995: 172.
137
COSAC Secretariat, Annex to the 8th biannual report of COSAC: national parliaments' replies to the questionnaire,
prepared for XXXVIII COSAC meeting held in Estoril, 14-16 October 2007, at 114.
138
Quadros, Fausto de. Direito da União Europeia, Coimbra: Almedina, 2004: 313.
139
Quadros, Fausto de. Direito da União Europeia, Coimbra: Almedina, 2004: 313.
20
primacy of EU law,140 the Union's respect for the Member States' national identity, and the
Union's reliance on national constitutional sources of fundamental rights protection – but also in
the constant Europeanization of national constitutions. As such, "the appearance of a European
constitution […] does not provoke the disappearance, destruction or futility of national
constitutions".141 In fact, "[…] the European constitution counts on the national constitutions in
order to enrich its own content […]".142 These observations a fortiori apply to national
parliaments.
Finally, the caveat against underestimating the Assembly's powers is also in order. For
instance, Miranda's brief survey of the Assembly's EU competences led him rightly to iterate that
their nature is not that of decision but of supervision, that they fall within the political function
stricto sensu, and that the Government is not obliged to follow the Assembly's opinion. However,
his comment that the Assembly's scrutiny yields "acts without external effectiveness"143 cannot be
endorsed without a thorough substantiation of the Assembly's actual scrutiny performance,
especially given the recent impetus injected by the Barroso initiative. An empirical insight chiefly
into the contents of the Assembly's ex ante scrutiny of draft EU initiatives is a necessary
prerequisite in asserting the existence, absence or quality of Portuguese parliamentary supervision
of EU decision making. Though any such query is somewhat impaired by the lack of clear-cut
criteria for assessing scrutiny effectiveness,144 it is the ex ante parliamentary involvement that
should guide future research endeavors.
In the end, it must be conceded that the Portuguese parliament's mission of "discovering
Europe"145 has of late turned into that of "Europe discovered". The Assembly has become aware
of the multifarious identity of the Union's democracy.
140
Miranda argued that primacy of EU law is "logically absurd" and is merely a matter of convenience and necessity to
adapt the national legal order to that of the Union. He underpinned his argument by the fact that the European
constitution is a creation of the Member States, that it requires ratification, and that it thus lacks immediate democratic
basis. Miranda, Jorge. "A 'Constituição Europeia' e a ordem jurídica portuguesa," O Direito, Vol. 134-135, 2002-2003:
16.
141
Quadros, Fausto de. "Constituição europeia e constituições nacionais - subsídios para a metodologia do debate em
torno do Tratado Constitucional Europeu," O Direito, Vol. 137, No. 4-5, 2005: 696.
142
Quadros, Fausto de. "Constituição europeia e constituições nacionais - subsídios para a metodologia do debate em
torno do Tratado Constitucional Europeu," O Direito, Vol. 137, No. 4-5, 2005: 697.
143
Miranda, Jorge. Direito constitucional III: integração europeia, direito eleitoral, direito parlamentar, Lisboa:
Associação Academica da Faculdade de Direito de Lisboa, 2001: 38.
144
See further in: Raunio, Tapio and Wiberg, Matti. "How to measure the Europeanisation of a national legislature?,"
Scandinavian Political Studies, Vol. 33, No. 1, 2010: 74-92.
145
Magone, José. "The Portuguese assembleia da república: discovering Europe," Journal of Legislative Studies, Vol.
1, No. 3, 1995: 151-165.
21