Prologue
One could imagine that a subject such as regulating CO2-emmissions is one of the competences of the European Union (EU), since the climate does not constrain itself to one single state. One can also imagine that, due to the single currency of the Euro, monetary policy of the member states would fall under the competency of the Union. On the other hand, some people might think regulating package sizes of DVDs would constitute excessive regulation by the Union, as well as regulating which subjects teachers should teach their students in high school. All the above deals with that the EU can do, and what it cannot. Or, in better words, what the EU may do, and what it may or should not do. There are no strict rules concerning the competences of the European Union, but there is a principle which guards the autonomy of states and is linked to the legitimacy of European decision-making: subsidiarity. But is this principle effective? And does it really contribute to the legitimacy of the Union’s policies? That is exactly what this thesis is about.
I hope you will enjoy reading this thesis and I thank you for taking interest in it.
List of abbreviations
CoRCommittee of the Regions
COSACConference of European Community Affairs
Committees
DGDirectorate-General
ECEuropean Commission
ECHREuropean Convention for the Protection of
Human Rights and Fundamental Freedoms
ECJEuropean Court of Justice
ECSCEuropean Coal and Steel Community
EECEuropean Economic Community
EMUEuropean Monetary Union
EPEuropean Parliament
EUEuropean Union
JCMsJoint Committee Meetings
JPMsJoint Parliamentary Meetings
MPMember of Parliament (of the EP)
QMVQualified Majority Voting
SEA Single European Act
TECTreaty Establishing the European Community
TEUTreaty on the European Union
TFEUTreaty on the Functioning of the Union
Table of Contents
Prologue
List of abbreviations
Introduction
1. Connecting governance, subsidiarity and legitimacy
1.1.The workings of the European Union
1.1.1.History of the European Union
1.1.2.European Union institutions
1.1.3.Policy-making in the European Union
1.2.European governance
1.2.1.Governance in the EU
1.2.2.The role of subsidiarity in the European framework of governance
1.3.Subsidiarity
1.3.1.Definitions of subsidiarity
1.3.2.The history of subsidiarity
1.3.3.The legal status of subsidiarity
1.3.4.Subsidiarity and its most important actors
1.4.Legitimacy
1.4.1.How legitimacy is connected to subsidiarity
1.5.Flowchart
1.6.Conclusion
2. Methodology
2.1. Important variables and their indicators
2.2. Data sources
3. Parliamentary scrutiny in practice
3.1. The parliamentary scrutiny system
3.2. Case study
3.2.1. Case 1: Quality and safety standards for human organs intended for transplantation
3.2.2. Case 2: The right to translation and interpretation in criminal proceedings
3.2.3. Secondary uses of the subsidiarity check
3.3. Involvement of the European Parliament
3.4. The impact of parliamentary objections
4. Effects of parliamentary scrutiny
4.1. Similarities and differences in the case study
4.1.1. Similarities
4.1.2. Differences
4.1.3. Implications for the principle of subsidiarity
4.2. Implications of the case study for the legitimacy of EU policy-making
4.3. Conclusion
5. Subsidiarity under the Treaty of Lisbon
5.1. Most important changes under the Treaty of Lisbon
5.2. The future of subsidiarity
5.2.1. Subsidiarity checks
5.2.2. Yellow and orange card procedures
5.3. Conclusion
Conclusions and recommendations
Legitimacy: can national parliaments help?
Recommendations
Epilogue
Bibliography
Annex
Annex I: Relevant provisions of the European Treaties
Annex II: Protocol 1 to the Lisbon Treaty on the Role of National Parliaments in the Union
Annex III: Protocol 2 to the Lisbon Treaty on the Application of the Principles of Subsidiarity and Proportionality
Annex IV: List of national parliaments and chambers
Annex V: Interviews
Introduction
The European Union is of particular interest to many researchers since it establishes cooperative relationships between many European states. The process of European integration started after the Second World War and has gone further and deeper ever since. The six original founders of the EU have expanded their cooperative agreements to, at the time of writing, including 27 member states. It may not come as a surprise that with 27 member states it is hard to agree on what the EU should do and what remains among the competences of the member states’ governments. It may also come as no surprise that the formal competences of the EU have been identified subtly, but are not written in stone. In the day-to-day politics of the Union, decisions about whether the EU should or should not act are often made. These decisions are governed by the principle of subsidiarity.
The subject of this thesis is how subsidiarity works in the European Union and whether it has the potential to increase the legitimacy of European policy-making. This is an important topic, for the legitimacy of EU policies has been subject of many debates since the 1980s. Around that time, the European Community started to expand rapidly and the threat of the use of majority voting increased. Where, previously, national governments would not make any decisions in the Council of which they knew that their national parliaments would not support them, majority voting caused national governments to be able to get outvoted. In effect, this diminished the influence of national parliaments in European policy-making (Estella, 2002:37-45). As national parliaments are democratically chosen by the people and therefore generally represent what the people of a member state want, the threat of majority voting nearly eradicated this democratic element by allowing a member state to be bypassed entirely. The principle of subsidiarity tries to give national parliaments more say in the EU, and it is therefore useful to investigate what subsidiarity does for the legitimacy of European policy-making. What will be researched is how national parliaments have used the principle up until now, how the European Commission (EC) has responded to the communications sent to it by the national parliaments and how these mutual interactions have thus characterized the principle itself. Furthermore, insight in the possible implications of the changes in the treaty basis of subsidiarity with the entry into force of the Lisbon Treaty will be considered based on what happened in the past. The use of the principle will then indicate its value for increasing legitimacy.
The research question that I will try to answer is the following: can national parliaments, using the principle of subsidiarity, increase the legitimacy of the EU policy-making process?
The social value of answering this question is that it will give insight into the role of national parliaments in the EU. An increasing role of national parliaments would indicate an increasing role of its citizens in EU matters, since national parliaments are democratically chosen institutions. The EU lacks this kind of institutions, for the European Parliament is the only EU body holding elections and the turnouts at these elections usually are quite low. The EU could thus benefit from more involvement of its citizens. Subsidiarity could help the citizens to understand the division of tasks is in Europe, so that they do not expect their national legislators to do something when it is a task of the EU and vice versa. This should then increase their support of the EU and its institutions and hopefully increase the legitimacy of its policy-making. The scientific value of this research is that it will show whether national parliaments actually are adept at increasing the legitimacy of EU policy-making by using the principle of subsidiarity. It is not written in stone that their involvement in matters concerning this principle will do the EU’s legitimacy any good. Therefore, insight on the past use of the principle and its effects will provide useful information about the possibilities of involving national parliaments further in EU matters.
The research question allows me to delve into cases dealing with subsidiarity and the consequences of parliamentary action and their interaction with the Commission. Essentially, then, the nature of this thesis is a case study. In order to come to a conclusion that answers the question, the following sub questions will be employed:
- How can legitimacy be defined?
- What does the EU governance framework look like?
- What part does subsidiarity play in this framework?
- How can subsidiarity be defined?
- How has subsidiarity evolved?
- What is the legal status of subsidiarity?
- What was its status under Maastricht and Amsterdam?
- What is its status under Lisbon?
- What institutions are important with regards to the principle?
- What is the role of the European Commission?
- Is there a role for the legislators, ie. the Council and the European Parliament?
- Does the judiciary of the European Union play a role?
- What role do national parliaments have in reviewing subsidiarity?
- How is subsidiarity connected to legitimacy?
- How have national parliaments employed subsidiarity?
- Has there been involvement of the European Parliament?
- Can secondary uses of the principle be found?
- How has the European Commission reacted to these actions by national parliaments?
- Have parliamentary objections resulted in changes in or withdrawals of Commission proposals?
- What is the significance of parliamentary scrutiny on grounds of subsidiarity as used until now?
- What are the prospects for the role of subsidiarity under the Lisbon Treaty?
- What recommendations can be made?
The answers to these sub questions can be discovered in the consequent chapters of this thesis. In the first chapter I will answer the first to third sub question by creating the theoretical framework used to analyze data for this thesis. The theoretical framework will consist of literature on policy-making in the EU and its most important actors, governance mechanisms in the EU and their connection to subsidiarity, and literature on legitimacy and how it can be influenced by national parliaments. A flowchart showing the important variables operating in this thesis will also be presented. From the first chapter follow the indicators employed in the thesis to analyze the data that is used. These indicators will be used to measure the dependent, intervening, intermediate and independent variables of this thesis. This information will be part of the chapter on methodology. The third chapter will deal with sub questions four and five, discussing the two cases used to interpret the use and status of the subsidiarity principle. The two cases I have chosen for this study are proposals made by the EC. They are COM(2008) 818 and COM(2009) 338, dealing with respectively quality and safety standards for human organs intended for transplantation and the right to translation and interpretation in criminal proceedings. What will be analyzed is the content of the proposals, any communications sent by national parliaments to the EC and responses of the EC, and any additional material concerning the cases. The fourth chapter will deal with sub question six, analyzing the significance of parliamentary scrutiny for subsidiarity. The fifth chapter will answer sub question seven and thus try to identify the possible prospects for the future of subsidiarity under the Lisbon Treaty. The sixth and final chapter will answer the research question and provide conclusions and recommendations.
1. Connecting governance, subsidiarity and legitimacy
This chapter will provide the theoretical framework this thesis hinges on. As mentioned in the introduction, the sub questions answered will be the first, second and third sub question. These questions deal with legitimacy, governance and subsidiarity. First, the basics of how the EU works will be discussed, since a knowledge of at least the basic decision-making procedures is imperative for a good understanding of the dynamics of subsidiarity and parliamentary scrutiny. Then, the academic basis for subsidiarity will be discussed by providing information on governance frameworks. Important for subsidiarity in this sense is the White Paper on European Governance, published by the EC (2001). Third, literature on subsidiarity itself will be discussed as well as the legal basis as established for the principle in the treaties of the EU. Fourth, the concept of legitimacy will be presented and linked to the principle of subsidiarity. Finally, this chapter will show a flowchart that evolves from thee presented theory. This flowchart will show the important variables for this thesis.
1.1.The workings of the European Union
In order to understand why subsidiarity is important in the EU and why national parliaments have a role in scrutinizing any proposals made by the EU, a basic understanding of the history of the EU, its institutions and the mechanisms governing EU decision-making is needed. This will be discussed below.
1.1.1.History of the European Union
The European Union we know today started out in 1952 as a cooperation of six states (Belgium, France, Germany, Italy, Luxembourg and The Netherlands) in the European Coal and Steel Community (ECSC). A few years later, in 1957, these states decided to increase their cooperation. They drafted the Treaty of Rome, which, amongst others, established the European Economic Community (EEC). Since then, the Treaty of Rome and the Treaty of Paris, which established the ECSC, have undergone several rounds of revision (Cini, 2007:2). However, before the first significant change was made, there were two rounds of enlargement. In 1973 Britain, Denmark and Ireland joined the Community. Greece joined in 1981. Then, in 1986, two important things happened. One of these was the accession of Spain and Portugal (Dinan, 2005:4). The other was the first important revision of the then existing treaties: the Single European Act (SEA). This treaty came into force in 1987 (Cini, 2007:2). The SEA was the cause of some very important reforms. Examples are the extension of the use of Qualified Majority Voting (QMV) in the Council, the establishment of a deadline for the completion of the internal market, the introduction of the cooperation procedure that gave the European Parliament more power, and an expansion of formal competences of the Community (Cini, 2007:32). In 1992 there were new rounds of negotiation among the members of the Community, which led to the adoption of the Maastricht Treaty (Cini, 2007:2). This treaty is also called the Treaty on the European Union (TEU), since it established the European Union as an entity. It also paved the way for the European Monetary Union (EMU), which ultimately led to the creation of a common currency, the euro. Maastricht also introduced the principles of subsidiarity and proportionality and established a three-pillar structure within which policies were made under different decision-making procedures (Cini, 2007:33-34). In 1995 the European Union experienced another round of enlargement when Austria, Finland and Sweden joined (Dinan, 2005:4). The EU recognized that Maastricht had left some problems unanswered, so a new round of treaty negotiations began in 1996. This led to the Treaty of Amsterdam (1997), which changed a couple competences and policies of the EU, enhanced the legislative task of the EP, changed many unanimity requirements for policy change into QMV and added extra emphasis on the subsidiarity principle. Quickly after Amsterdam a debate on the capacity for the EU to cope with further enlargement flared, since the Treaty had failed in this respect. This resulted in the Treaty of Nice, which expanded the QMV procedure even further and enhanced the coherence of the EU. After Nice, the EU was readying itself for the biggest round of enlargement ever. However, the prospect of enlargement also led to another debate on the future of Europe. Its legitimacy and transparency were said to be too low and the EU was not close enough to the European citizens (Cini, 2007:36-41). Ultimately, in 2004, the member states agreed on the Constitutional Treaty. This Treaty, though, would only come into force years later and in modified form (Cini, 2007:2). Before then, the EU would enlarge itself even more. Many of the formerly communist Eastern European states were done preparing themselves to join the EU. Therefore, in 2004 the EU was enlarged by ten new states: the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia (Dinan, 2005:4). In 2007 Romania and Bulgaria also joined the EU, taking the EU to the 27 member states it currently has (Europa, 2 June 2010a). After the last enlargement in 2007, the Constitutional Treaty still had not been ratified due to negative referenda outcomes in France and The Netherlands. The Treaty was modified where controversies had risen and was then presented anew under the name Lisbon Treaty. Finally, all member states were able to ratify it and the Lisbon Treaty came into force in December 2009 (Europa, 2 June 2010b).
1.1.2.European Union institutions
The European Union has four official institutions. These are the European Commission, the European Parliament, the Council of the European Union (or ‘Council’) and the Court of Justice (ECJ). Each institution has its own tasks and responsibilities and will be discussed briefly.
The European Commission is responsible for the initiation of policy proposals, the representation of the EU in trade negotiations, the issuing of rules and regulations, managing the EU budget and the guarding of the implementation of the treaties and of secondary legislation. The EC is composed of multiple task-specific Directorate-Generals (DGs) that, together, form Europe’s main bureaucracy (Hix, 2005:40-41). The EC can be compared to the ministries at national level.
The European Parliament is one of the legislative bodies of the EU, but the only body that is directly elected by the European citizens. It consists of more than 700 parliamentarians from all 27 member states. Among its tasks are reviewing the EU budget and participating in the decision-making processes of the EU. Especially for the latter task, the EP’s powers have grown over time. It now mostly engages in a co-decision procedure with the Council and has the ability to block proposals (Cini, 2007:176-179).
The Council consists of the ministers from the governments of the member states and can vary in composition in accordance with the subject being considered. For example, when discussing agricultural policies, the Council will be composed of all the agricultural ministers in the EU. When the Council considers education, the education ministers of the European member states will take their seat in the Council. The Council’s tasks are to set the long-term policy goals of the EU, to set the medium-term policy agenda, to implement EU legislation through the governments of the member states themselves, to manage, together with the EC, the day-to-day administration of EU policies and to vote on legislative proposals made by the EC, usually in cooperation with the EP (Hix, 2005:31, 83). The Council is not to be confused with the European Council, which consists of all the Heads of State or of Government of the EU and provides the EU with overall strategic guidance. The European Council is sometimes called upon to break any deadlocks that arise in the Council of the European Union (Cini, 2007:158).