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Europaudvalget 2002-03
EUU Alm.del INFO-note I 259
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Europaudvalget

(Info-note I 259)

(Offentligt)

Folketingets Europaudvalg

Christiansborg, den 21. maj 2003

Til

udvalgets medlemmer og stedfortrædere

Rapport fra den franske nationalfor-

samling om de nationale parlamenter

i fremtidens EU

Vedlagt fordeles til medlemmernes orientering en rapport af

14. maj 2003 udarbejdet af Mr. Jean-Louis Debré, formand

for den franske nationalforsamling, med titlen ”National

Parliaments and the Institutional Evolution of Europe”.

Rapporten er udarbejdet til brug ved konferencen for Parla-

mentsformænd i Athen den 23.–24. maj 2003.

Med venlig hilsen

Christian Dubois

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CONFERENCE OF SPEAKERS

OF THE EUROPEAN UNION

PARLIAMENTS

Athens – 23 - 24 May 2003

_____________

NATIONAL PARLIAMENTS

AND THE INSTITUTIONAL EVOLUTION OF EUROPE

_____________

EPORT PRESENTED BY

. J

EAN

-L

OUIS

EBRÉ

RESIDENT OF THE

RENCH

ATIONAL

SSEMBLY

_____________

May 14

2003

SUMMARY

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Foreword

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First part:

Interinstitutional dimension of national parliaments with respect

to the work of the Convention on the Future of Europe

I – National parliaments and the European Commission

Towards direct access to Commission documents by national

parliaments

Existing state of the law

The Convention’s proposal

An institutional innovation: the early warning right

Procedure envisaged for monitoring the subsidiarity principle

A desirable extension of the early warning mechanism to

fundamental rights

II – National parliaments and the Council of the European Un-

ion

Challenges of a greater transparency of Council work

Elaboration of a code of conduct

Nature of information communicated to national parliaments

Timeframes for assessing proposals

III – National parliaments and the European Parliament

Clarification of roles: from competition to complementarity

Interparliamentary dimension of the European Union

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Second Part:

The collective role of national parliaments remains a divisive sub-

ject

I – Disappointing results of the Conference of Community and

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European Affairs Committees of Parliaments of the Euro-

pean Union (COSAC)

From the creation to the institutionalisation of COSAC

COSAC’s difficult evolution

II – Absence of consensus on the forms of collective representa-

tion of national parliaments

Rejection of a second chamber

Uncertainties regarding the creation of a ‘European Congress’

Third Part:

Towards a redefinition of the role of national parliaments in an

enlarged Europe

I – Constitutional dimension of the role of national parliaments

Procedures for involvement in the revision of the Constitutional

Treaty

Participation of national parliaments at the stage of the draft-

ing of the draft revision

Participation of national parliaments in adopting certain con-

stitutional provisions

Participation of national parliaments in the enlargement process

Information of national parliaments on the progression of

membership negotiations

Intervention of national parliaments at the ratification of

membership treaties

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II - Intervention of national parliaments as regards the sup-

pression of the European Union pillars

National parliaments, Economic and Monetary Union and fund-

ing of the European Union

Economic and Monetary Union

Funding of the Union

National parliaments and the common foreign, security and de-

fence policy

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National parliaments and the area of freedom, security and jus-

tice

Simplification of legal instruments

Recognition of the European Union’s international legal per-

sonality

Political scrutiny over Europol

Conclusion:

Seven recommendations for the role of national parliaments in

the enlarged Europe

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Foreword

_____

The future of national parliaments in the European Union is un-

furling today at the Convention. Largely in the majority - they form 56 of

the 105 members of the Convention on the Future of Europe - the dele-

gates of national parliaments are nevertheless experiencing difficulties in

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expressing themselves in an organised manner within an assembly where

divides are complex: ‘big’ countries and ‘small’ countries, ‘sovereignists’

and ‘communitarists’, ‘supranationalists’ and ‘intergovernmentalists’,

current member countries and future member countries, governments and

parliaments… Far from favouring one component rather than another or

giving greater importance to such or such an interest, the aim is to make

headway towards clear objectives serving a joint project and a community

of peoples.

The Declaration on the Future of the Union, appended to the Nice

Treaty, mentions the role of national parliaments in the European archi-

tecture among the four important questions with a view to the enlarge-

ment and democratic strengthening of reunified Europe. The decision,

taken at Laeken in December 2001 by the Heads of State and Govern-

ment, to convene a Convention tasked with proposing a reform of the

institutions is a positive signal sent to national parliaments. Never before

had the revision procedure of the Treaties been so transparent, so democ-

ratic, so political and consequently so … parliamentarised.

The citizens we represent place high expectations in Europe which

they don’t always understand. As parliamentarians it is our duty to

strengthen the daily involvement of our assemblies in European affairs

which, we all know, are not foreign affairs. The engagement of national

parliaments in European construction has been a recurrent topic since the

election in 1979 of European deputies by direct universal suffrage. In

1999, the entry into force of the protocol on the role of national parlia-

ments, appended to the Amsterdam Treaty, amounted to explicit recogni-

tion of the contribution of parliaments to European construction. Whereas

the Union is criticised for its democratic deficit, the European Convention

has opened new prospects which we must seize. The involvement of na-

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tional parliaments forms a key factor in the deepening of the Union which

we so fervently desire.

The work started fifteen months ago, and which should be con-

cluded in a few weeks time, has shown on several occasions the parlia-

mentary dimension of the Union. The present report intends to underscore

the challenge of the reforms envisaged by the Convention regarding the

future role of national parliaments.

Whether it is a matter of the monitoring of the subsidiarity and

proportionality principles, suppression of the pillars and its consequences

on the Union’s policies, promotion of European citizenship and the Un-

ion’s democratic life, recognition of international legal personality or the

revision procedure of the treaties, all these subjects have a parliamentary

dimension which we should promote. In a spirit of interinstitutional ex-

change and dialogue, national parliaments can play, each for its part, an

active role with each of the institutions of the Community ‘triangle’. Col-

lectively, they will also have to imagine in the future flexible but efficient

forms of interparliamentary cooperation, which will participate in redefin-

ing their role in an enlarged Europe.

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FIRST PART

INTERINSTITUTIONAL DIMENSION OF THE ROLE OF NATIONAL PARLIA-

MENTS WITH RESPECT TO THE WORK OF THE

CONVENTION ON THE FUTURE OF EUROPE

_______________

I – National parliaments and the European Commission

Never in the history of European construction have national parliaments had di-

rect relations with Community institutions

. They have always made their views known

through their respective governments acting within the Council of the European Union.

This organic isolation has, to a certain extent, set national parliamentarians aside from

the major European political challenges, causing a certain ignorance of the Union’s insti-

tutional operation. A major innovation examined by the Convention consists therefore in

organising direct institutional dialogue between national parliaments and the European

Commission.

Towards direct access to Commission documents by national parlia-

ments

Existing state of law

The entry into force in 1999 of the protocol on the role of national parliaments

in the European Union, appended to the Amsterdam Treaty, marked an important step

forward in the recognised rights of national parliaments, by setting forth that

‘all Com-

mission consultation documents (green and white papers and communications) shall be

promptly forwarded to the national parliaments of the Member States.’

Referring to

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‘proposals for legislation’, ‘they shall be made availableowngood time so that the gov-

ernment of each Member State may ensure that its in national parliament receives

them as appropriate.’

In practice this means that the Commission never sends its docu-

ments directly to national parliaments and the latter are informed of Union legislative

activities through their governments.

The Convention’s proposal

The draft protocol on the application of the principles of

subsidiarity and proportionality, presented by the Convention Prae-

sidium

, sets forth in its point 3 that ‘the

Commission shall send all its

legislative proposals and its amended proposals to the national parlia-

ments of the Member States at the same time as to the Union legislator.’

As for the draft protocol on the role of national parliaments, it sets forth

While, until 1979, the members of the Strasbourg Assembly were indeed de-

legates of national parliaments, the Assembly had merely a consultative

role and did not have the powers it has today.

CONV 579/03 (27 February 2003)

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that

‘all Commission consultation documents (green and white papers

and communications) shall be forwarded directly by the Commission to

Member States’ national parliaments’

and adds that

‘the Commission

shall send all its proposals for legislation

directly

to Member States’ na-

tional parliaments

at the same time as to the European Parliament and

to the Council.’

This drafting takes up a recommendation made by the

Convention

‘National parliaments’

working group chaired by Mrs Gisela

Stuart. In a contribution to this working group

, Commissioner Michel

Barnier, a member of the Convention, therefore specified that

‘the Com-

mission would not have any difficulty in envisaging direct transmission if

the Member States felt that this would not jeopardise constitutional rela-

tions between national governments and national parliaments.’

As the scope of documents subject to automatic transmission may

appear restrictive, several amendments have been filed within the Con-

vention in order to broaden the fields covered by the protocol

: transmis-

sion of the multiannual strategy, annual report of the European mediator,

financial and regulatory consequence of legislative proposals. Some

amendments also suggest that the Commission should promptly answer

requests for information or clarifications on the part of national parlia-

ments. In effect, while European Union official documents can now be

accessed on Internet, and parliaments can obtain them directly and instan-

taneously, institutional dialogue with the Commission could contribute

substantial added value by supplying national parliaments with the neces-

sary explanations to analyse thoroughly the texts on which they are re-

quired to vote.

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WG IV - WD 9 (15 July 2002)

CONV 610/03 (12 March 2003)

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An institutional innovation: the

early warning right

Procedure envisaged for monitoring the subsidiarity principle

The subsidiarity principle, introduced by the Maastricht

Treaty, refers to the most appropriate level of intervention when a compe-

tence is shared between the Union and the Member States. In the event of

‘shared’ or ‘competing’ competences, European action is justified only if

the Union is really in a position to act more effectively than Member

States individually.

Application of the subsidiarity principle is one of the four priority topics

appearing in the Declaration on the Future of Europe appended to the Nice Treaty. This

is a subject closely related to that of the role of national parliaments because the absence

of appropriate monitoring of compliance with subsidiarity may well lead to parliamen-

tary competence being lost.

The recommendations of the Convention ‘Subsidiarity’ working group,

chaired by Mr Inigo Mendez de Vigo

, advocate the recognition of an ‘

early warning

right

’ for national parliaments by which each national parliament could send the Com-

mission a reasoned opinion on the supposed infringement of the subsidiarity principle.

Early warning is therefore aimed at allowing national parliaments to express their posi-

tion individually and directly at the beginning of the Community legislative procedure. It

is a matter of

ex ante

monitoring that does not set out to allow national parliaments to

intervene directly in the Community legislative procedure. This justifies the fact that the

Commission cannot be legally bound by the opinions given. Consequently, the draft

protocol on the application of the subsidiarity and proportionality principles specifies

that

in the event where at least one third of national parliaments would give a justi-

fied opinion

on infringement of the subsidiarity principle by the Commission’s proposal,

the Commission would be obliged to reconsider its proposal. Following this reconsidera-

tion, the Commission could decide either to maintain its proposal, or amend or withdraw

it.

Many amendments have been filed on this draft protocol aimed at intro-

ducing a ‘red card’ which would oblige the Commission to withdraw its proposal when-

ever two-thirds of national parliaments would give a negative opinion. The perverse

effects of such a proposal should not be underestimated; by intervening so brutally in the

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legislativeconstruction. However therethe risk of other means of source of blockage par-

European procedure, parliaments run are many appearing as a involving national of

liaments than placing them exclusively in a position of opposition.

In any case, even if it is not legally bound by parliamentary opinions, the Com-

mission will in practice receive a political signal which will naturally have consequences

on the content of its legislative proposals. The history of European construction is a

process of permanent negotiations; in this respect, the early warning right fits fully into

Community logic.

The Convention

‘Subsidiarity’

working group had also envisaged the

possibility for national parliaments to exercise an

ex post

right to bring actions before the

CONV 286/02 WG I 15 (23 September 2002)

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European Union Court of Justice after entry into force of legislative acts. In its draft

protocol on the application of the principles of subsidiarity and proportionality

, the

Convention Praesidium recognised a right of appeal for national parliaments only via

their respective governments. This restrictive interpretation caused disappointment since

the working group proposals had nevertheless achieved consensus at the Convention

plenary session of 3 and 4 October 2002

. That’s why the Praesidium could be led to

proposing improvements on at least two points:

First, each national parliament should have two votes in implementing the

early warning right, in order to take into account the specific situation of

bicameral parliaments;

Second, each chamber should be able to bring an action directly before the

European Union Court of Justice, within the framework of

ex post

actions

envisaged

the

draft

protocol.

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CONV 579/03 (27 February 2003), mentioned above.

CONV 331/02 (11 October 2002)

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A desirable extension of the early warning mechanism to fundamental rights

The area of security, freedom and justice is at the centre of the competences of

national parliaments and of the life of European citizens. The measures adopted in this

field, particularly in penal matters, should be the subject of a democratic and transparent

debate both at European and at national level..

The evolutions contemplated by the Convention in the justice and

home affairs (JHA) field deeply affect the competences of national par-

liaments, and should in this respect be combined with a strengthening of

their role in elaborating Union law. The nature of the competences and of

the issues addressed by the Union is indeed changing radically. Member

States’ policies in criminal, asylum and immigration matters are being

increasingly defined in Brussels. The issues addressed at each session of

the ‘Justice and Home Affairs’ Council therefore concern the central as-

pects of the rights and of the life of each citizen and of the competences

of their representatives.

The Convention

‘Freedom, security and justice’

working group

chaired by Mr John Bruton therefore mentioned in its final report

the

creation – suggested by several Convention members – of a similar early

warning mechanism for the cases where national parliaments feel that an

initiative – of the Commission or of a group of Member States – would go

against fundamental aspects of their national penal law. It would be ad-

visable for such a possibility to be planned in the protocol on the role of

national parliaments.

II – National parliaments and the Council of the European Union

The relationship between national parliaments and the Council is

complex as the Council, made up of representatives of governments,

holds both legislative power and executive competences within the Euro-

pean Union. Europe indeed does not have the same type of separation of

powers characterising the member countries. Further, if one considers that

the Council is the Community institution representing the interests of

States, national parliaments could have their place there, as a component

of States, alongside their respective governments. In this respect everyone

agrees in considering that the relationship between governments and par-

liaments is a matter for the specific constitutional practices of each coun-

try; this however does not exclude the formulation of proposals aimed at

better informing national parliamentarians of the work of the Council of

the European Union. In this framework, the major concern of national

parliaments is that of a greater transparency of Council work, the prereq-

uisite for a better access to Community information.

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CONV 426/02 WG X 14 (2 December 2002).

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Challenges of a greater transparency of Council work

The Convention, in keeping with the conclusions of the

‘Simplifi-

cation of Instruments and Procedures’

working group chaired by Mr

Giuliano Amato

, recommends a clearer distinction between the legisla-

tive and executive activities of the Council of the European Union. Draft

Article 36 of the Constitutional Treaty therefore sets forth that the legisla-

tive debates of the Council in its legislative form shall be public. This

proposal breaks with the confidentiality of negotiations which character-

ises the Council’s work. It is also consistent with the strengthening of the

powers of the European Parliament as the ordinary law co-legislator of

the Union and whose proceedings, as far as they are concerned, are pub-

lic. In this spirit, point 5 of the draft protocol on the role of national par-

liaments sets forth that

‘the agendas for and the outcome of Council meet-

ings shall be transmitted directly to Member States’ national parlia-

ments.’

This is a strengthened guarantee offered to national parliaments.

Transparency of work by the Council in its legislative form will

now allow national parliaments to be informed not only at the beginning

of the legislative procedure but throughout the Community process. This

will promote the intensity and scope of parliamentary scrutiny.

Elaboration of a code of conduct

The relations between governments and national parliaments are a

matter for the specific constitutional requirements of each State. How-

ever, practice shows that some national systems are more supportive of

parliamentary scrutiny than others, and that it can be very useful to list the

best practices seen in the European Union. In its final report, the Conven-

tion

‘National parliaments’

working group therefore felt it was useful to

analyse the various national systems in order to define minimum stan-

dards. Two aspects can be distinguished: the nature of information sent to

national parliaments and compliance with minimum timeframes for as-

sessing proposals.

Nature of information communicated to national parliaments

The report by the

‘National parliaments’

working group argues for

regular hearings of ministers, both before and after Council sessions.

COSAC has also elaborated instructive minimum standards in ac-

cordance with the recommendations of a working group created within it

CONV 424/02 WG IX 13 (29 November 2002)

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in November 2002 during the Danish chair of the European Union .

These

‘Copenhagen guidelines’,

adopted in January 2003 during the

XXVIIIrd extraordinary COSAC in Brussels, state that: ‘Opportunities

should be provided for meetings with ministers in the national parlia-

ments well in advance of Community meetings. The government should

give an account of its attitude to Community proposals at such meetings.’

Furthermore ‘The national parliament should be informed by the govern-

ment well in advance as regards decisions to be made in the European

Union and concerning the government’s proposals regarding decisions.

This concerns ordinary meetings of the Council, summit meetings, and

inter-governmental conferences. The national parliaments should also

subsequently be informed of the decisions taken.’

Information is constantly evolving; it must be transmitted in a con-

tinuous flow so that national parliaments can enjoy information updated

as Community negotiations actually take place. Further, the transmission

by each government of an impact study stating the provisions of national

law that may be modified by European legislation would strengthen the

relevance of parliamentary scrutiny.

Timeframes for assessing proposals

Currently, the protocol on the role of national parliaments, ap-

pended to the Amsterdam Treaty, sets forth that, subject to exceptions on

the ground of urgency, a period of six weeks shall elapse between the

time when the Commission transmits a legislative proposal to the Council

and to the European Parliament, and the inclusion of this proposal on the

Council agenda with a view to a decision. However difficulties arise

when, without formally adopting an Act, ministers reach a political

agreement before the six week period elapses. That is why the Convention

working group recommended that

‘Council working groups and Coreper

should not acknowledge preliminary agreements on proposals concerned

by the six-week period set forth in the protocol on national parliaments,

appended to the Amsterdam Treaty, before the end of said six-week pe-

riod, exceptions being allowed for on the ground of urgency – as laid

down in the protocol.’

However this proposal was not adopted by the

Praesidium in the new draft protocol submitted to the Convention.

The final report of the working group chaired by Mrs Gisela Stuart

also recommended that

‘the Council’s rules of procedure provide for a

clear week to elapse between a legislative item being considered at Core-

per and the Council.’

This is an important provision so that national par-

liaments can assert their viewpoint from the beginning of the procedure.

However neither does this proposal appear in the draft presented by the

Praesidium.

http://www.cosac.org/fr/precede/copenhague_2002/wgdec.htm

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The new draft protocol on the role of national parliaments there-

fore falls short of the expectations of national parliaments and scarcely

makes any improvement with respect to the present situation. This is nev-

ertheless a major challenge so that national parliaments can exercise real

influence on European decision-taking.

III– National parliaments and the

European Parliament

In 1979 the election of European deputies by direct universal suf-

frage broke the organic tie that existed between national parliaments and

Community institutions. In effect, until then, each parliament appointed

within itself representatives to sit at the Strasbourg Assembly. But the

European Parliament of the time had none of the powers of a parliament

like any other: the Rome Treaty did not grant it real decisional powers

since it was merely empowered to formulate simple opinions on a limited

number of texts. The 1979 reform was therefore essential to make the

European Parliament a really democratic institution, by granting it unde-

niable popular legitimacy through direct universal suffrage.

There is no point in opposing two legitimacies – one European,

and the other national – which complete each other far more than they

oppose one another. The European Union is based on a double legitimacy:

that of States and that of peoples. As they are directly elected by citizens,

the European Parliament and national parliaments represent the peoples of

European Union Member States. The Union’s democratic legitimacy will

therefore be strengthened by simultaneously strengthening these two

poles of legitimacy (European Parliament and national parliaments).

Clarification of roles: from competition to complementarity

Marking a fundamental step in the deepening of European

construction, the Maastricht Treaty, which came into force in 1993, has

transferred huge swaths of sovereignty from States to the European Un-

ion, dispossessing national parliaments of some of their competences. The

Treaty on European Union has also considerably strengthened the pre-

rogatives of the European Parliament by extending the scope of the co-

decision procedure in the Community pillar.

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The Union’s institutional architecture is indeed based on three pil-

lars which correspond to different decision procedures. Whereas the first

pillar refers to Community policies which are based on the exclusive right

of initiative of the European Commission and a mechanism for adopting

texts based mostly on the co-decision procedure, the second and third

pillars are a product of intergovernmental logic where the role of States is

preponderant. It is not the role of national parliaments to interfere in the

Community legislative procedure even if the recognised competence of

the European Parliament cannot exclude continuous dialogue with na-

tional parliaments. But the early warning right, which the Convention

envisages to grant them to monitor subsidiarity, clearly shows that they

should intervene only if the Union ignores the scope of their competences.

Relations between national parliaments and the European Parliament are

therefore closely related to the delimitation of competences between the

Union and Member States. It is therefore particularly in the field of shared

competences that thorough analysis should commence on the future rela-

tions between the European Parliament and national parliaments. This

illustrates the deeply interparliamentary dimension in the European Un-

ion.

Interparliamentary dimension in the European Union

A real intensification in the relations between national parliaments

and the European Parliament has been seen for several years. This is a

positive evolution and emphasises the complementarity between these

two legitimacies.

Cooperation between the European Parliament and national parlia-

ments can assume various forms. In several Union countries, it can there-

fore be observed that European affairs committees of parliaments are

open to the national European deputies. For instance at the Bundestag,

European deputies, allowed to participate in the work of the European

affairs committee, are appointed by the Speaker on proposal by the par-

liamentary groups. However, while they can take part in the debates,

European deputies are not generally entitled to vote within the parliamen-

tary committee. It should also be emphasised that, in the majority of Un-

ion countries, European deputies are increasingly regularly invited to par-

ticipate in joint meetings as part of the strengthening of interparliamentary

cooperation.

Similarly, national parliamentarians are frequently invited to partici-

pate in European Parliament committee meetings. The rules of procedure

of the European Parliament indeed set forth that

‘Parliament shall keep

the national parliaments of the Member States regularly informed of its

activities. The Conference of Presidents may give a mandate to the Presi-

dent to negotiate facilities for the national parliaments of the Member

Article 55

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States, on a reciprocal basis, and to propose any other measures to facili-

tate contacts with the national parliaments.’

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The report by Mr Giorgio Napolitano, Chairman of the European

Parliament Committee on Constitutional Affairs, adopted on 23 January

2002 on relations between the European Parliament and the national par-

liaments in European integration

, proposes to develop and place on a

systematic footing interparliamentary cooperation, particularly in the ar-

eas of the common foreign and security policy, Economic and Monetary

Union, the area of freedom, security and justice and constitutional affairs

In this respect, the report suggests the formulation of an ‘interparliamen-

reciprocal commitments

with regard to programmes of multilateral or bilateral meetings on Euro-

pean issues of common interest or of a general or sectoral nature,’

well as

‘the exchange of information and documents. ’

tary agreement’ which might include

‘outline

In the same spirit, the working group created within COSAC rec-

ommends the conclusion of such an agreement between national parlia-

ments and the European Parliament in order to place exchanges on a sys-

tematic footing. The regular organisation of sectoral interparliamentary

meetings would help to know the viewpoint of national parliamentarians

before the European Parliament examines legislative proposals at first

hearing. But the initiative of such meetings should not be exclusively re-

served for the European Parliament. Exchanges between European politi-

cal groups and parties should also intensify to develop and broaden a

genuine democratic debate on the Union’s legislative programme.

The impetus for and the follow-up of interparliamentary cooperation

requires the setting in place of appropriate administrative structures. The

increase in the number of liaison officials from national parliaments at the

European Parliament bears witness to the concrete and daily dimension of

interparliamentary cooperation. A supportive secretarial structure for CO-

SAC, formed for instance from this network of liaison officials, would

also contribute very usefully to strengthening this cooperation.

A5-0023/2002 (23 January 2002)

A draft cooperation agreement between the European Parliament and the

Member States was therefore elaborated by the European Parliament

Committee on Constitutional Affairs.

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SECOND PART:

THE COLLECTIVE ROLE OF NATIONAL PARLIAMENTS

REMAINS A DIVISIVE SUBJECT

_________

I – Disappointing results of the Conference of Community and European Affairs

Committees of Parliaments of the European Union (COSAC)

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From the creation to the institutionalisation of COSAC

In May 1989 the speakers of the parliaments of the European

Community Member States agreed at their Madrid conference to

strengthen the role of national parliaments in the Community process by

bringing together the various European affairs committees of parliaments.

The first meeting of the COSAC as an informal interparliamentary or-

ganisation was held in Paris in the month of November 1989. Since then,

COSAC meets at least twice a year in the parliament of the country chair-

ing the Union. Since 1994 the candidate countries have been involved in

COSAC work with observer status.

It was in 1999, with the entry into force of the Amsterdam Treaty,

that COSAC was officially institutionalised, through the protocol on the

role of national parliaments. Yet COSAC has not become a new institu-

tion, but remains an ‘interparliamentary conference’ which can now sub-

mit any contribution it deems appropriate to the Union institutions. The

protocol on the role of national parliaments also sets forth that

‘COSAC

may examine any legislative proposal or initiative in relation to the estab-

lishment of an area of freedom, security and justice which might have a

direct bearing on the rights and freedoms of individuals.’

Each COSAC meeting generally ends with the adoption of a con-

tribution - to date by consensus. Mention can be made, for example, of the

declaration on terrorism (XXIIIrd COSAC, Versailles, October 2000), the

appeal to voters in the European elections (XXth COSAC, Berlin, May-

June 1999) or else the declaration on transparency (XVIth COSAC, The

Hague, June 1997).

These declarations do not however express the position of national

parliaments but only that of COSAC. In effect, COSAC represents Euro-

pean affairs committees of parliaments more than national parliaments,

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which means that the parliamentarians sitting in COSAC cannot commit

their respective parliaments. Nor does the interparliamentary conference

have its own budget, operating costs being borne by the parliament of the

country chairing the Union.

It can be regretted that COSAC has not to date fully used its pre-

rogatives recognised under the Amsterdam Treaty, not having examined

any Commission legislative proposal.

In order to improve COSAC’s operation, a working group

was set up in November 2002 by the Danish chair of the Union. This

working group held three meetings between November 2002 and March

2003, and has proposed a reform of COSAC’s rules of procedure. The

debates raised by the work of this group have nevertheless revealed di-

vergent approaches regarding COSAC’s future role and a collective or-

ganisation of national parliaments within the European Union.

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COSAC’s difficult evolution

The draft reform submitted on 27 January 2003 to the examination

of the extraordinary COSAC, Brussels, already formed a compromise

with respect to the initial document presented in November by the Danish

chair. The main proposals concern the following points:

- The adoption of a parliamentary code of conduct that is not legally bind-

ing (‘Copenhagen guidelines’) aimed at improving the quantity and qual-

ity of information supplied to national parliaments. This code of conduct

should respect the constitutional requirements specific to each Member

State;

- A reform of the voting rules, consisting in allowing the adoption of COSAC contribu-

tions no longer by unanimity but by a qualified majority of ¾ of the members voting

thereon, which corresponds to more than 50% of the voting rights. However, in amend-

ing the rules of procedure the principle of unanimity among the delegations present at

the meeting is maintained;

- The possibility of setting up a permanent COSAC secretariat in accor-

dance with procedures to be defined;

- Support by COSAC for greater cooperation between the sectoral com-

mittees of national parliaments, yet without making COSAC the coordi-

nating body of these meetings;

- The holding, each year, of a presentation by the European Commission

of its legislative programme and the possibility for COSAC to offer sec-

toral support for implementing the ‘early warning mechanism’ as regards

monitoring of the subsidiary principle;

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- The conclusion of interinstitutional agreements between COSAC and

the European Commission, the European Parliament and the Council of

the European Union.

The tone of the debate which has started on the working group

proposals has revealed the omnipresent fear that a reform of COSAC will

inevitably lead to its transformation into a new institution. Both the re-

nouncement of voting by unanimity and the possibility of creating a light

secretariat helping to ensure continuity of work, has strengthened this

sentiment, especially among the delegations of the European Parliament,

the Netherlands, Germany and Italy. Yet, owing to its very composition,

COSAC cannot become a new institution since it already includes a

Community institution, namely the European Parliament.

COSAC should on the other hand remain the focal point of inter-

parliamentary cooperation and relations between national parliaments and

the European Parliament should thereby be calmed. Yet COSAC has been

more than an informal forum ever since its existence was enshrined in the

protocol on the role of national parliaments, appended to the Amsterdam

Treaty.

In any event, COSAC must decide on its future now that the Con-

vention is drawing the Union’s future institutional architecture. Will a

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reformed COSAC on its own, however, be able to meet the concerns of

national parliaments? It appears necessary to explore other pathways, not

excluding a strengthening of COSAC but probably more visible to the

European citizen.

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II – Absence of consensus on the forms of collective representation of

national parliaments

Rejection of a second chamber

The idea of creating a second European chamber is not new. Many

political leaders and institutions argue for its creation. Yet the physiog-

nomy of this new institution varies considerably depending on the pro-

posals, and opinions are evolving rapidly on this politically sensitive sub-

ject. Some desire the creation of a Chamber of States composed of repre-

sentatives of governments and national parliaments, alongside a Chamber

of Peoples made up of the present European Parliament. Others feel it is

necessary to form a second chamber composed of representatives of na-

tional parliaments but whose competence – non-legislative – would be

limited to political scrutiny of matters coming under the present second

and third pillars. The Assembly of the Western European Union (WEU)

for instance recommends the establishment of an interparliamentary ‘sec-

ond chamber’ to follow-up and accompany policies having remained

mainly intergovernmental and fields of competence like the common for-

eign and security policy or police and judicial cooperation in penal mat-

ters

There are those, lastly, according to whom a second chamber of

national parliaments should fit into a new European Parliament having

become bicameral and composed of an upper chamber and a lower cham-

ber (the current European Parliament).

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But the idea of a second chamber is far from achieving consensus.

A report by the House of Lords, published on 27 November 2001

, un-

derscores the disadvantages. The setting up of a second chamber would in

fact be likely to create the conditions of a conflictual relationship with the

European Parliament and would be an argument used by governments to

inform their respective parliaments less about European affairs. Lastly, a

second chamber could exacerbate voter impatience and discontent to

which it would have a very hard time responding. The impact of its work

on opinion would be very low, even non-existent, while the dual mandate

Assembly of the Western European Union / Interim European Security and Defence

Assembly

- Document A/1778 (4 June 2002). ‘The role of national parliaments in the

European Union and more specifically in ESDP – a contribution from the Assembly to

the Convention’ – Presentation of the report tabled on behalf of the Political Committee

by Mr Eyskens, rapporteur.

7 report (session 2001-2002) ‘A second parliamentary chamber for

Europe: an unreal solution to some real problems’.

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imposed on its members would not allow them to be sufficiently available

to scrutinise European institutions on a continuous basis.

For these reasons, in particular, there is no agreement today on the

opportuness of creating a second chamber, and the Convention debates

are not heading in that direction. However, everyone acknowledges the

need to find a both visible and useful formula which will involve national

parliaments – and through them citizens – in European construction. In

this spirit the President of the Convention, Mr Valéry Giscard d’Estaing,

put forward the idea of a ‘European Congress.’

Uncertainties regarding the creation of a ‘European Congress’

A ‘European Congress’, composed of representatives of national

parliaments and of the European Parliament, would make it possible to

bring together in the same structure two distinct but non-competing le-

gitimacies. President Valéry Giscard d’Estaing therefore spoke personally

in favour of a Congress composed of 700 members (one third of European

deputies and two thirds of national parliamentarians), which would debate

once a year on the ‘state of the Union’ and could ultimately elect a presi-

dent of Europe.

This proposal has not to date been welcomed in the Convention.

European Parliament delegates in particular have mostly declared them-

selves opposed to it, at least in its present state. Admittedly many misun-

derstandings have arisen on this Congress, which some wrongly perceive

as a new Community institution. However the Congress would be far

more of an occasional, non-permanent meeting, without any legislative

competence. It would be a political arena for debate on the Union’s major

orientations. The Congress could also serve as an electoral college par-

ticipating in the appointment procedure of the highest officials in the Un-

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ion. Lastly it could be competent to revise, by a qualified majority, some

provisions of European treaties. In this precise case, the Congress repre-

sents an alternative to the impasse that would be created by maintaining

the unanimity rule in a Europe enlarged to 25 countries or more.

But the Convention has not yet reached an agreement on this sub-

ject, which explains the ongoing vibrant discussions on other possible

forms of involving national parliaments and strengthening interparliamen-

tary cooperation. These proposals would not exclude the creation of a

Congress.

An idea is gaining ground: that of specialised conventions or of

hoc

interparliamentary conferences, as suggested by the conclusions of

the working group on the role of national parliaments. The example of the

Convention on the charter of fundamental rights of the European Union

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has shown the efficacy of the convention ‘method’ which could be trans-

posed to other subjects where political impasses occur. Why then not

imagine, particularly in matters coming under the present-day third pillar,

the European Council giving a mandate to a specialised convention, meet-

ing for a limited period, to formulate reform proposals? Such conferences

should be open to all the stakeholders concerned and their proceedings

should be governed by the principle of disclosure. This is the prerequisite

to involve citizens and, more widely, civil society in the challenges of

European construction, which should attract more media attention to be

better understood.

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