The role of national parliaments in EU decision-making: legitimacy and accountability
PhD student: Dr D. Jancic
Promotor: Prof L.F.M. Besselink
Duration: 1/9/2007 - 31/8/2011
PhD defence: Utrecht, 11/10/2011
The project involves a (comparative) study of the manner in which national parliaments tailor their scrutiny of EU decision-making to the relevant EU institutions and actors, the various types of EU instruments and decision-making procedures and to the various types of EU competence. The research has as an objective to investigate the extent to which national parliaments confirms the hypothesis that they are part of a composite European order existing of both the EU and member state constitutional orders. Research topic and Approach 1 As institutions par excellence of democratic accountability, due to their composition and their particular modes of operation national parliaments can enhance political legitimacy. As regards national policies, this role is often considered to be eroded due to EU integration policies. On het other hand, it is sometimes hypothesized that national parliaments have a role to play with a view to providing EU decision-making with greater parliamentary legitimacy this not only with regard to the operation of the national government representative of the relevant member state when acting within the EU institutions, but also as providing legitimacy to the operation of the EU institutions as such. The research project tries to single out, through a more refined analysis than has been used so far in the political science and constitutional literature, the actual and the potential roles of national parliaments with regard to European integration within the framework of the EU. Thus the project aims to tie together hypotheses developed in a body of descriptive and theoretical (political science, constitutional and legal) literature, leading to a more refined and precise tool for evaluating the roles which a national parliament can have in a multilevel European constitution which aims both to steer and to reflect a situation of multilevel governance. 2 There is a considerable body of largely descriptive literature, which analyses (for most of the 15 member states before the recent enlargements of the EU) the practices of national parliaments with regard to scrutinizing and reviewing EU decision making. Often, in this body of literature (or rather: two bodies of literature) there is a general sense of dissatisfaction concerning the infamous democratic deficit of the EU at the background. These two bodies of literature, however, do not seem to influence each other, and mostly the research on the role of national parliaments is stagnant. Nor does the present literature present any possible remedies with regard to the role national parliaments could play with regard to EU decision-making. The best explanation for this state of affairs is that most of the literature remains at a quite general stage of analysis and reflection, without differentiating sufficiently between various actors, decision-making contexts and nature of those decisions, and the position which a national parliament has or could have in these various contexts. The intention of this research project is to carry forwards the research in the field on the basis of the present state of the art. It tries to do so by engaging in a more refined analysis of the various contexts in which national parliaments can (or cannot) play a useful role with regard to EU decision-making processes. In essence, the key direction in which the research is promising is that of roles which national parliaments can play in what is referred to as the EUs multilevel constitutionalism (Pernice 1999). Unravelling the actual practices in this multilevel context and evaluating them in terms of the (potential) role of national parliaments with a view to enhancing legitimacy and accountability, is the core aim of this research project. Academically, the main innovative aspect lies in the bridging the fields of constitutional, political science and political theory in research located within the field on constitutional law - an approach which has so far largely been lacking, particularly within the Dutch research culture. 3 This project systematically relates the various actual and potential roles which national parliaments can play along three axes: 1) types of EU competence The significance of national parliaments scrutiny must necessarily depend on the nature or type of competence which the EU possess in its various fields of jurisdiction. If it concerns a fully exclusive EU competence, the role of such scrutiny is of a different nature, than if it concerns a competence which the EU shares with member states, or if it concerns a field of EU action which is merely complementary to member state action. The constitutional framework (subsidiarity clauses plus the proposed subsidiarity mechanism in Draft Constitution) and the literature both indicate that national parliaments may have more of a legitimating role, particularly on the so-called input side of legitimacy when it concerns shared powers or otherwise non-exclusive EU powers, than with regard to exclusive EU competences (Scharpf 2003; cf. the attempt by the Commission in the White Paper on Governance to involve national parliaments in preparing decisions, and Harlows criticism of this, Harlow 2002, 101-107). This hypothesis needs testing by analysing the various instruments which parliaments have developed with regard to EU decision making in these various types of EU competence. This should be done with a view to indicating with more precision than is possible at present the potential of scrutiny by a national parliament like the States General in the Netherlands. 2) forms of decision-making procedures (EU instruments) Apart from distinguishing between various types of EU competence, we also need to distinguish between the actual forms of EU decision making procedures. There exists a plethora of EU decision making procedures, both as to the type of instrument (treaties, directives, regulations, decisions, non-binding and adhoc instruments, recommendations, common positions, common actions etc, but also comitology in its various guises though here again it is expected that the new EU Constitution will reduce recourse to comitology Open Method of Coordination, reinforced cooperation and flexibility in various forms, informal intergovernamentalism etc.), and as to their modalities. Even after the reduction of instruments in the recently agreed EU Constitution, a larger number of instruments will exist than is suggested by a surface reading of the text of that Constitution. Given the type of rationalization undertaken in the EU Constitution, it will be best in our research project to distinguish instruments not by their name, but on the basis of the twofold criteria of the type of decision making (mainly legislative and non-legislative or executive decision-making) and to some extent also under what procedure (the procedural modalities of the instruments). With regard to modalities, a major distinction recurring in the literature is that between majority decisions and those requiring unanimity. Majority requirements are seen as changing the nature and possibilities of national parliaments roles. The main hypothesis put forward in the present literature, is that with regard to majority decisions the potential of national parliaments is more limited than with unanimity. However, decision-making EU practice reveals that consensus practices prevail in cases where majority decisions can be taken. Hence, this hypothesis needs testing in light of the practices of national parliaments. Again, this should be done with a view to distinguishing the true potential for parliamentary scrutiny in a country like the Netherlands. 3) decision-making actors This differentiating criterion is closely related to the former: difference in actors makes the potential for national parliaments different, both on constitutional and on empirical grounds. This is due to the different institutional and constitutional position of actors, different input and accountability occasions towards actors as regards timing (e.g. co-decision or autonomous decisions) and institutional context of decision-making (e.g. 1st, 2nd and 3rd pillars, and their equivalents in the new EU Constitution). Here a classic hypothesis regards the role of the European Parliament. The two main approaches are taken both in the literature and in practice. The first views the relationship between national parliaments and the EP as mutually exclusive and regards the legitimitizing and accountability function of parliaments sufficiently exhausted when the EP has a formal decisive role which leaves little room for a meaningful role of national parliaments. The other considers the two approaches as complementary, the EP fulfilling a role at the EU level which is not identical to the role of national parliaments with regard to EU issues. The test of these hypotheses hinges in part on a theoretical assessment of the role of these actors within a multilevel setting: is it a compound of political orders, or rather a neatly distinguished set of more or functionally divided orders which each have their own role to play at its own level or field of competence. Yet, it would independently of such an normative approach be useful to see whether in practice national parliaments which ostensibly hold to one of these views (a case in point being the Netherlands, where parliament ostensibly only sees a scrutinizing role when the EP has no or few powers) still make use of practices of scrutiny or other forms of discussing and reviewing EU decision-making. Also with regard to this perspective, the materials which make this kind of testing possible, have been fully described in the literature, both normatively and empirically (e.g. Besselink 1993 and 2001, Besselink et.al. 2002, Del Grosso 2000). Other hypotheses regarding the role of other actors at EU level in relation to national parliaments have been (and can be further) developed with regard to various parts of the executive (particularly the government representatives in the Council, but also in the field of comitology, OUM, and in intergovernmentalist contexts and shared forms of governance as with the structural funds). This should involve in particular the timing of advance scrutiny (with regard to which the too little too late hypothesis is dominant) and mechanisms for controlling the bureaucratic agents and the dispersion of EU dossiers through the various branches of the executive. The more differentiated analysis outlined in these previous paragraphs should make it possible not only to clarify present roles but also to suggest new opportunities for national parliaments in the multi-level setting of EU decision-making itself, particularly the States General in the Netherlands which shall be the more particular focus of the study. 4 The research is located in the genre of constitutional law and constitutional studies, with an evaluative approach of potentialities and focuses on a small number of countries in a comparative manner. The project is to a large extent based on already existing literature and research undertaken with respect to various member states; to that extent the research has a comparative component. Also, the investigation into possible new or rather: not yet employed methods of parliamentary involvement, will use comparative materials heuristically. The selection of countries to be studied should be based on the different parliamentary practices and powers within national constitutional systems: practices of parliaments must (and can only) be understood against the background and in the context of the particular constitutional and governmental system of a country. Although one must observe that precisely the desire for national parliamentary scrutiny of EU decision-making can bring about a change in the constitutional powers of parliament (a notable example is France, where parliament within its traditional semi-presidential context of the Vth Republic was, by way of exception to its normal position, granted the power to issue resolutions to government in the field of EU decision-making, thus bringing about a fundamental change in the relations between parliament and government), on the whole it still remains the case that national constitutional and parliamentary traditions and cultures influence the particular practices which are developed with regard to the scrutiny of EU decision-making. It must be acknowledged that this necessarily limits the scope of the research. Yet, it aims to be standard setting for further research in the field of constitutional practices with regard to the EU and its decision-making. Even more contextually limited must be any recommendation to which the analysis might lead. The potential involvement of and scrutiny by a national parliament must necessarily differ from member state to member state. Although it would in the abstract be desirable to do a cross country comparative research, the duration and scope of the project will make it imperative to restrict the scope of the project. The plan is first to analyse decision-making processes at EU level and national level as regards legal parameters; the selection of a number of critical dossiers concerning particular EU measures in order to analyse the input, potential and actual, of national parliaments; these are to be supplemented with interviews with key representatives of decisional stake holders and actors.