Abstract
It is clear that the formal inclusion of the national parliament as a political actor within the EU decision-making process has been one of the most important innovations of the Lisbon Treaty. Their role, however, remains controversial. It is on the one hand disputed whether national parliaments enjoy sufficient powers to tame 'competence creep'. On the other hand, it is contested to what extent it is desirable that they should become involved as a legislative actor in the EU's decision-making procedure. This essay contributes to these debates by critically examining to what extent national parliaments can contribute to the enforcement of the subsidiarity principle. The article contends that national parliaments by having taken a too expansive view of their remit under Protocol No 2 appears to have 'misunderstood' their role within the EU- decision making procedure. Notwithstanding this, it is sustained that national parliaments could, in the absence of other trustworthy safeguards of federalism, be seen as a promising avenue for legitimate political control of the exercise of EU competences.
| Original language | English |
|---|---|
| Journal | European Public Law |
| Volume | 24 |
| Issue number | 4 |
| Pages (from-to) | 695-731 |
| ISSN | 1354-3725 |
| DOIs | |
| Publication status | Published - 2018 |
| Externally published | Yes |
Keywords
- Competence control
- National parliaments
- Political safeguards of federalism
- Subsidiarity
- Yellow Card Procedure
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In: European Public Law, Vol. 24, No. 4, 2018, p. 695-731.
Research output: Contribution to journal › Journal article › Research › peer-review
TY - JOUR
T1 - National parliaments and political control of EU competences
T2 - A sufficient safeguard of federalism?
AU - Öberg, Jacob
N1 - Funding Information: See Art. 5(3) TEU. The French Senate, supra n. 44 and the Swedish Parliament, supra n. 44 endorsed a similar test. See House of Representatives of the Republic of Cyprus, ‘Reasoned Opinion submitted by the House of Representatives of the Republic of Cyprus with regard to the Commission’s proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office [COM (2013) 534]’ (executive summary in English), at 2. See Swedish Parliament, supra n. 44, at 1–2; Cyprus Opinion, ibid.; Joint Committee on Justice, Defence and Equality (Ireland), Reasoned Opinion of Joint Committee on Justice, Defence and Equality, COM(2013)534 Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, Oct. 2013, at 2–3; Seimas of the Republic of Lithuania, Committee on European Affairs, Opinion on the European Commission Proposal for a Council Regulation on the Establishment of the European Public Prosecutor’s Office, 16 July 2014, No V-2014-4174L; Chamber of Deputies (Romania), Reasoned Opinion Finding the Lack of Conformity of the Proposal for a Council Regulation on the Establishment of the European Public Prosecutor’s Office with the Principle of Subsidiarity, COM(2013)534 (courtesy translation); House of Commons, Reasoned Opinion of the House of Commons Concerning a Draft Regulation of the Council on the Establishment of the European Public Prosecutor’s Office (EPPO); House of Lords, Reasoned Opinion by the United Kingdom House of Lords on Proposal for a Council Regulation on the Establishment of the European Public Prosecutor’s Office, COM(2013) 534 final, 12558/13, 28 Oct. 2013, at 5–6. See the French Senate, supra n. 44, Senate of the Republic of Poland, Opinion of the European Union Affairs Committee of the Senate of the Republic of Poland on the Proposal for a Council Regulation on the Establishment of the Funding Information: See the reasoned opinions referenced in supra n. 67. See Fromage, supra n. 31, at 13; Philip Kiiver, The Conduct of Subsidiarity Checks of EU Legislative Proposals by National Parliaments: Analysis, Observations and Practical Recommendations, 12 ERA Forum 535 (2012); Wieczorek, supra n. 38, at 1254–1257. See SWD (2013) 274, supra n. 53, at 16–17. See Cyprus Opinion, supra n. 70, at 2–3; Protocol No 2, supra n. 8, Art. 5. See Hungarian National Assembly, supra n. 73, at 1; Irish Opinion, supra n. 71; Romanian Opinion, supra n. 71, at 2–3; Croatian Parliament, Opinion of the European Affairs Committee on the Proposal for a Regulation on the establishment of the European Public Prosecutor’s Office, Zagreb, 1 Apr. 2014 (courtesy translation), at 2–3, Dutch House of Representatives of the States General, Reasoned Opinion (Breach of Subsidiarity) on the Proposal for a Council Regulation on the Establishment of the European Public Prosecutor’s Office, (DOC(2013)534, The Hague, 10 Oct. 2013 (courtesy translation); House of Lords’ Opinion, supra n. 71; underlining the procedural obligations in Art. 5 of Protocol No 2 and the Commission’s failure to show added value of EU action. Funding Information: Document No COM (2016) 128 final, 20 Apr. 2016 No 100-P-43, at 2; Parliament of Romania, Chamber of Deputies, Decision regarding the Adoption of the Reasoned Opinion on the Proposal for a Directive of the European Parliament and of the Council Amending Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 Concerning the Posting of Workers in the Framework of the Provision of Services, COM (2016) 128 (Courtesy Translation), 13 Apr. 2016, at 2–4; The Senate of the Parliament of the Czech Republic, Resolution of the Senate, On the Proposal for a Directive of the European Parliament and of the Council amending Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 Concerning the Posting of Workers in the Framework of the Provision of Services, Senate Print no. N 077/10, COM(2016) 128, Delivered on the 23rd session held on 27 Apr. 2016; Hungarian National Assembly, Committee on European Affairs, Reasoned Opinion (Courtesy Translation), 10 May 2016; The European Affairs Committee of the National Council of the Slovak Republic, Resolution Regarding the Proposal for a Directive of the European Parliament and the Council Amending the Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 Concerning the Posting of Workers in the Framework of the Provision of Services (COM(2016)128 (Courtesy translation), 10 May 2016; Romanian Senate, Reasoned Opinion of the Senate of Romania on the Proposal for a Directive of the European Parliament and the Council Amending the Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 Concerning the Posting of Workers in the Framework of the Provision of Services, COM(2016)128 (Courtesy translation), 4 May 2016, at 2; Riigikogu, Resolution of the Riigikogu, Reasoned Opinion to the Presidents of the European Parliament, the European Commission and the Council of the European Union on Non-conformity to the Principle of Subsidiary of the Proposal for a Directive of the European Parliament and of the Council Amending Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 Concerning the Posting of Workers in the Framework of the Provision of Services, (Courtesy translation), 10 May 2016; Croatian Parliament, European Affairs Committee, Reasoned Opinion on Proposal for a Directive of the European Parliament and of the Council Amending Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 Concerning the Posting of Workers in the Framework of the Provision of Services, COM (2016) 128 (Courtesy translation), 6 May 2016; European Affairs Committee of Saeima, Opinion on COM (2016) 128 Proposal for a Directive of the European Parliament and of the Council Amending Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 Concerning the Posting of Workers in the Framework of the Provision of Services (Courtesy translation), 5 May 2016. 143 See Commission, Communication from the Commission to the European Parliament, the Council and the National Parliaments on the Proposal for a Directive Amending the Posting of Workers Directive, with Regard to the Principle of Subsidiarity, in Accordance with Protocol No 2, COM (2016) 505 final, at 6–7; Fromage & Kreillinger, supra n. 125, at 149–151. 144 See Czech Senate, supra (n. 142); Slovakian Opinion (n. 142); Croatian Opinion, supra (n. 142). Funding Information: 188 See Case C-58/08 Vodafone and Others, supra n. 93, paras 39, 43, 45, 55, 58, 59, 63, 65; Case C-310/04 Spain v. Council [2006] ECR I-07285, paras 122–135 for support of a broader approach including the impact assessment in the assessment of legality. 189 See Fromage & Kreillinger, supra n. 125, at 141–143, holding that the procedural subsidiarity objection was compelling. 190 See SWD (2016) 52, supra n. 134, at 19–20. See also s. 2 for the general argument. 191 Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (the IMI Regulation) [2014] OJ L 159/11. 192 See Lithuanian Seimas, Committee on European Affairs, supra n. 142; Czech Senate, supra n. 142; Romanian Chamber of Deputies, supra n. 142; van Hoek & Houwerzijl, supra n. 135; Della Pellegrina & Saraceno, supra n. 153, at 4–5. 193 See Lithuania Seimas, Committee on Social Affairs, supra n. 142; Romanian Chamber of Deputies, supra n. 2; Czech Senate, supra n. 2; Slovakian Opinion, supra n. 142; Romanian Senate, supra n. 142; Funding Information: 121 See Commission Communication, supra n. 67, at 9; SWD (2013) 274, supra n. 53, at 26–27. 122 See however Wieczorek, supra n. 38, at 1260–1261. 123 See Commission Communication, supra n. 67, at 9–10. 124 See Commission, Proposal for a Directive of the European Parliament and of the Council amending Directive 96/71/EC of The European Parliament and of the Council of 16 December 1996 con-cerning the posting of workers in the framework of the provision of service, COM (2016) 128 final. 125 See Diane Fromage & Valentin Kreillinger, National Parliament’s Third Yellow Card and the Struggle over the Revision of the Posted Workers Directive, 10 Eur. J. Legal Stud. 125,154–158 (2017); Catherine Stupp, Divides Deepen Between Member States Over Posted Workers Bill (Euractiv.com, 24 Mar. 2017): https:// www.euractiv.com/section/economy-jobs/news/divides-deepen-between-member-states-over-posted-workers-bill/. The proposed Posted Workers Directive was subsequently adopted by the Council on 18 June 2018, see Council of the European Union’ Directive of the European Parliament and of the Council amending Directive96/71/EC concerning the posting of workers in the framework of the provision of services’’ PE CONS 18/18, Brussels 14 June 2018; See also Council Press Release, ‘Posting of workers: Council adopts the Directive’ (21 June 2018), http://www. consilium.europa.eu/en/press/press-releases/2018/06/21/posting-of-workers-council-adopts-thedir ective/ (accessed 17 Sept. 2018). 126 See Protocol No 2, supra n. 8, Arts 6 and 7; COM (2016) 505 final, 2. Publisher Copyright: © 2018 Kluwer Law International BV, The Netherlands.
PY - 2018
Y1 - 2018
N2 - It is clear that the formal inclusion of the national parliament as a political actor within the EU decision-making process has been one of the most important innovations of the Lisbon Treaty. Their role, however, remains controversial. It is on the one hand disputed whether national parliaments enjoy sufficient powers to tame 'competence creep'. On the other hand, it is contested to what extent it is desirable that they should become involved as a legislative actor in the EU's decision-making procedure. This essay contributes to these debates by critically examining to what extent national parliaments can contribute to the enforcement of the subsidiarity principle. The article contends that national parliaments by having taken a too expansive view of their remit under Protocol No 2 appears to have 'misunderstood' their role within the EU- decision making procedure. Notwithstanding this, it is sustained that national parliaments could, in the absence of other trustworthy safeguards of federalism, be seen as a promising avenue for legitimate political control of the exercise of EU competences.
AB - It is clear that the formal inclusion of the national parliament as a political actor within the EU decision-making process has been one of the most important innovations of the Lisbon Treaty. Their role, however, remains controversial. It is on the one hand disputed whether national parliaments enjoy sufficient powers to tame 'competence creep'. On the other hand, it is contested to what extent it is desirable that they should become involved as a legislative actor in the EU's decision-making procedure. This essay contributes to these debates by critically examining to what extent national parliaments can contribute to the enforcement of the subsidiarity principle. The article contends that national parliaments by having taken a too expansive view of their remit under Protocol No 2 appears to have 'misunderstood' their role within the EU- decision making procedure. Notwithstanding this, it is sustained that national parliaments could, in the absence of other trustworthy safeguards of federalism, be seen as a promising avenue for legitimate political control of the exercise of EU competences.
KW - Competence control
KW - National parliaments
KW - Political safeguards of federalism
KW - Subsidiarity
KW - Yellow Card Procedure
U2 - 10.54648/euro2018040
DO - 10.54648/euro2018040
M3 - Journal article
AN - SCOPUS:85057430798
SN - 1354-3725
VL - 24
SP - 695
EP - 731
JO - European Public Law
JF - European Public Law
IS - 4
ER -