EUU, Alm.del - 2014-15 (1. samling) - Bilag 481: Invitation fra det polske parlament til arbejdsgruppe om nationale parlamenters rolle 13/5-15

Europaudvalget 2014-15 (1. samling)
EUU Alm.del Bilag 481
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Working Group on the possibility of

improving the "yellow card" procedure

Working paper

Introduction

The decision to set up the Working Group was taken at an informal meeting of the

Chairpersons of European Affairs Committees of Parliaments of the EU Member States on the

Commission Work Programme (CWP) and the "yellow card", held in Brussels on 19 January

2015, which was upheld at the meeting of the Chairpersons of European Affairs Committees

(COSAC) of EU Parliaments in Riga on 1-2 February 2014. The Working Group was tasked with

exploring

the possibility of:



improving the "yellow card" procedure;



extending the deadline for reasoned opinions from 8 to 12 weeks within the current

Treaties.

The participants of the COSAC Chairpersons meeting in Riga agreed that the work of the

Working Group would be headed by Agnieszka Pomaska, Chairperson of the European Union

Affairs Committee of the Polish Sejm, with membership composed of interested Chairpersons

of European Affairs Committees of Parliaments of the EU Member States and the EP.

The Working Group is to present the results of its work during the COSAC conference in Riga.

This paper examines the existing practices and presents proposals for:

II.

III.

Closer involvement and cooperation by national Parliaments in European affairs –

better use of the mechanisms available to them

Possibilities for national Parliaments to scrutinize proportionality on an equal footing

with subsidiarity

Improving the timeliness and quality of the European Commission's response to

reasoned opinions and opinions sent by national Parliaments under the political

dialogue

The possibility of extending the deadline for reasoned opinions from 8 to 12 weeks

IV.

EUU, Alm.del - 2014-15 (1. samling) - Bilag 481: Invitation fra det polske parlament til arbejdsgruppe om nationale parlamenters rolle 13/5-15

Closer involvement and cooperation by national Parliaments in

European affairs - better use of the mechanisms available to them

Background

The EU law provides for the direct involvement of national Parliaments in the subsidiarity

check of an EU draft legislative act both before such act is adopted (ex

ante

scrutiny). The

ante

scrutiny procedure is stipulated in Articles 6 and 7 of Protocol No 2 and it provides for the

possibility of a draft legislative act being evaluated by national Parliaments (the "yellow" and

"orange card" procedures).

The Treaty framework is complemented by internal acts issued by each Parliament/Chamber

and declarations by the Commission, the Council and the EP on the manner of dealing with

national Parliaments' reasoned opinions transmitted under the procedure set forth in Articles

6 and 7 of Protocol No 2.

According to the data contained in the IPEX database, during 5 years following the entry into

force of the Treaty of Lisbon, 2010-2014, national Parliaments issued and submitted

276

reasoned opinions

on the non-compliance of legislative proposals with the principle of

subsidiarity and

2521 other opinions and positions to the European Commission; and 297

reasoned opinions and 1606 other documents to the European Parliament

While the Treaty of Lisbon strengthened the role of national Parliaments in the EU legislative

process, they scarcely resorted to the "yellow card" procedure during the 5 years and the

early warning mechanism was triggered only twice.

The above data shows that there is a need both for better use by national Parliaments of the

Treaty provisions concerning subsidiarity and proportionality scrutiny, and for an enhanced

cooperation between national Parliaments themselves with a view to making better use of

the mechanisms made available to them. The cooperation can be split into three stages:

Stage 1: From the publication of the Commission Work Programme to the

end of March (each year)

The European Commission publishes its Work Programmes for the next year in November.

Following the publication of the Commission Work Programme, national Parliaments, each in

line with its own practice and internal procedure if its Chamber, would carry out a scrutiny of

this strategic document and identify proposals they consider most important (or

controversial).

What would become an added value is an exchange of opinions on the CWP in the presence

of an EU Commissioner who might enhance the understanding of the Parliaments' position as

a direct participant of the discussion.

Data for the Commission as at the end of December 2014, based on unofficial information; data for the European

Parliament as at 3 March 2015

EUU, Alm.del - 2014-15 (1. samling) - Bilag 481: Invitation fra det polske parlament til arbejdsgruppe om nationale parlamenters rolle 13/5-15

The recent years have seen a growing number of Parliaments/Chambers which carry out an

in-depth analysis of the Commission Work Programme. However, not all

Parliaments/Chambers have been using this instrument, which makes cooperation with other

Parliaments/Chambers in this regard more difficult, and hence does not enable national

Parliaments to make full use of their Treaty instruments, weakening their influence on the EU

decision-making process. Therefore, in order to increase the influence of national Parliaments

on the EU decision-making process, we encourage all Parliaments/Chambers which do not

have such a process in place yet, to become involved in the scrutiny of the Commission Work

Programme and share information on their own priorities with other Parliaments.

Through individual parliamentary scrutiny of the Work Programme, each national Parliament

(and the European Parliament) is able to select dossiers which are subject to political

attention and to further scrutiny. This selection process helps to focus politicians' attention

and work, which is crucial for effective parliamentary scrutiny – most Parliaments do not have

the time or the capacity to scrutinise the bulk of EU proposals.

National Parliaments would have

time to analyse the Commission Work Programme by the

end of March.

Having chosen their priorities from the Commission Work Programme,

national

Parliaments/Chambers would inform other Parliaments/Chambers about them

through

national Parliaments' representatives in Brussels and through the COSAC Secretariat and the

IPEX Information Officer.

Based on priority proposals selected by national Parliaments/Chambers, a

table of national

Parliaments' priorities

for a given year should be developed. The table would be prepared by

the IPEX Officer in Brussels based on information received from national Parliaments in

Brussels. Each Parliament could both back and withdraw its support for each priority at any

time.

On 1 April each year,

the table of priorities of national Parliaments

would be sent to the

European Commission. It seems reasonable for a cover letter to be sent by the Presidency

parliament on behalf of all national Parliaments/Chambers, as this would be a clear sign of

enhanced cooperation. For its part, the COSAC Secretariat should be involved in preparing

the letter and keeping deadlines.

Parliaments/Chambers particularly interested in specific draft legislative acts

would agree

between themselves which of them is to assume the champion role for a given draft

legislative act.

The champion's role would be to track the progress of work on a given

proposal, signal the date of publication of the draft legal act to other Parliaments/Chambers,

initiate informal meetings with other interested Parliaments/Chambers, with the relevant

Commissioners, draw the attention of other Parliaments/Chambers to any issues that may

give rise to doubt from the national Parliaments' point of view, etc. The exchange of

information between the champion Parliament and other Parliaments should take place

through the representatives of national Parliaments in Brussels.

A dedicated closed forum

should be set up on the IPEX platform

for the sole use of national Parliaments, which would

be administered by the IPEX Officer. The documents posted on the forum should include all

documents concerning the Commission Work Programme for a given year (the Commission

EUU, Alm.del - 2014-15 (1. samling) - Bilag 481: Invitation fra det polske parlament til arbejdsgruppe om nationale parlamenters rolle 13/5-15

Work Programme itself, lists of priorities of each national Parliament, a table of priorities of

national Parliaments, and any correspondence on national Parliaments' priorities contained in

the Commission Work Programme. At the same time, the forum should serve national

Parliaments as a place for on-going, quick exchange of information, views and for discussions

(mainly informal ones) on the different draft legislative acts in the form of chats.

The forum

should operate in parallel with email communication

in order to:



prevent fragmented distribution of information;



collect all information on a given draft legal act at a single point;



enable all Parliaments/Chambers starting work at different dates to efficiently reach all

information on a given draft legal act.

Stage 2: From the publication of a draft legislative act to the end of the

time limit for the subsidiarity check by national Parliaments

Following the publication of a draft legal act, during the 8 weeks given to

Parliaments/Chambers for issuing an opinion on its compliance with the principle of

subsidiarity,

the champion Parliament role seems to be of key importance.

If we want to

achieve enhanced, effective cooperation, the champion Parliament should:



engage in drawing the attention of other Parliaments/Chambers to any problems

found in a given draft legislative act;



gather all emerging arguments that could be used by other Parliaments/Chambers in

the course of their work on a given draft legal act;



initiate informal meetings of the interested Parliaments/Chambers with the relevant

Commissioners;



possibly coordinate work on triggering the yellow card mechanism.

Each national Parliament/Chamber issues reasoned opinions in compliance with its internal

regulations.

Some Parliaments issue reasoned opinions in plenary sessions while in other

Parliaments committees are authorised to issue reasoned opinions on behalf of the Chamber.

Therefore, it seems impossible to introduce a standard form of reasoned opinion for all

Parliaments/Chambers. However, to avoid misunderstandings as to whether a given opinion is

a reasoned opinion or only an opinion in the political dialogue, it seems reasonable to

adopt

guidelines on the criteria for reasoned opinion both on the contents and scope.

Such

guidelines could be adopted by COSAC and communicated for information to the Conference

of EU Parliament Speakers.

Stage 3: After 8 weeks - without a yellow card

In the case at least 9

reasoned opinions are issued by national Parliaments/Chambers, the

relevant EU Commissioner should meet with the Parliaments that have issued reasoned

opinions on a given draft legislative act and discuss with them all issues raising doubts on the

part of national Parliaments.

An invitation to a meeting

could be sent to the relevant Commissioner by all the interested

Parliaments jointly or through the champion Parliament on behalf of all others.

EUU, Alm.del - 2014-15 (1. samling) - Bilag 481: Invitation fra det polske parlament til arbejdsgruppe om nationale parlamenters rolle 13/5-15

In the course of further work on a proposal, the

Commission should accurately show the

impact of reasoned opinions on the final shape of the draft legislative act.

Summing up the proposals described above, national Parliaments should:



make an input to the table of national Parliaments’ priorities



agree on choosing of the champion Parliament for respective draft legal

acts; role of the champion Parliament will vary depending the stage of a

legislative work



adopt guidelines on the criteria for reasoned opinion both on the

contents and scope of a reasoned opinion share the information using

both dedicated IPEX forum and mailing communication

II.

Possibilities

for

national

Parliaments

proportionality on an equal footing with subsidiarity

scrutinize

Article 5 of the Protocol No 2 to the Treaty of Lisbon on the application of the principles of

subsidiarity and proportionality provides that "Draft

legislative acts shall be justified with

regard to the principles of subsidiarity and

proportionality

Any draft legislative act

should

contain a detailed statement making it possible to appraise compliance with the principles

subsidiarity

and proportionality.”

Also in terms of the general obligations of institutions

(Article 1), the Protocol treats both principles jointly.

The scrutiny of a draft legal act only for its compliance with the principle of subsidiarity,

without taking into account the principle of proportionality, seems ineffective and illogical,

and it limits national Parliaments' competence with regard to the principle of subsidiarity

itself. It also often seems difficult to separate subsidiarity from proportionality, especially

where the significance of the provisions of an act is assessed in terms of the achievement of

Treaty objectives. Therefore, despite the fact that articles governing the procedure for the

scrutiny of draft legislative acts (Articles 6-7), the legislature makes reference to the principle

of subsidiarity only, it seems reasonable for national Parliaments/Chambers to be able to

analyse proportionality issues at least to the extent to which they can be separated from the

subsidiarity scrutiny.

In such a case, we encourage national Parliaments/Chambers to also include in their reasoned

opinions relating to non-compliance with the principle of subsidiarity information on the

possible non-compliance of the draft legislative act with the principle of proportionality. For

its part, the European Commission should also refer in its replies to any reservations

concerning the non-compliance with the principle of proportionality.

Also the Friends of Presidency Group, in its final report submitted to the Presidency in

December 2014, noted that "when

discussing the annual Commission Work Programme,

EUU, Alm.del - 2014-15 (1. samling) - Bilag 481: Invitation fra det polske parlament til arbejdsgruppe om nationale parlamenters rolle 13/5-15

special attention should be paid on the respect of the principles of subsidiarity and

proportionality",

treating the two as inseparable principles.

Having also in mind that the European Commission must apply the Treaties, it is not possible

within the current legal framework to send reasoned opinions on the non-compliance of draft

legislative acts with the principle of proportionality only.

However, having regard to:



the letter from the First Vice President of the European Commission Frans

Timmermans to the College of Commissioners dated 18 December 2014 in which he

announced that ‘forging a new partnership with national Parliaments is a priority for

this Commission’ and

the letter from the First Vice President of the European Commission Frans

Timmermans to the Chairperson of the European Affairs Committee of the Latvian

Parliament Lolita Čigāne, holding presidency of the COSAC, dated in January 2015, in

which he reaffirmed that "This European Commission is firmly committed to forging a

new partnership with national Parliaments – by renewing the existing political

dialogue”



it seems we are at the best moment in time to act in order to improve our cooperation with

the European Commission.

In the case at least 9 opinions issued by national Parliaments/Chambers on the breach of the

principle of proportionality only, the relevant EU Commissioner should meet with the

Parliaments that have issued opinions on a given draft legal legislative act and discuss with

them all issues raising doubts on the part of national Parliaments/Chambers.

Proposal for improved cooperation could be the Commission's special approach

to national Parliaments' opinions on the breach of the principle of

proportionality, especially if reservations in this respect were notified by a

substantial number of Parliaments/Chambers.

III. The possibility of improving the timeliness and quality of the

European Commission's response to reasoned opinions and

opinions sent by national parliaments under the political

dialogue

According to the data contained in the IPEX database, during 5 years following the entry into

force of the Treaty of Lisbon, 2010-2014, national Parliaments issued and submitted

276

reasoned opinions

on the non-compliance of legislative proposals with the principle of

EUU, Alm.del - 2014-15 (1. samling) - Bilag 481: Invitation fra det polske parlament til arbejdsgruppe om nationale parlamenters rolle 13/5-15

subsidiarity and

2521 other opinions and positions to the European Commission; and 297

reasoned opinions and 1606 other documents to the European Parliament

While the Treaty of Lisbon strengthened the role of national Parliaments in the EU legislative

process, they scarcely resorted to the "yellow card" procedure during the 5 years, triggering

the early warning mechanism only twice.

The first yellow card

referred to

COM(2012) 130,

i.e.

Proposal for a Council regulation on the

exercise of the right to take collective action within the context of the freedom of

establishment and the freedom to provide services.

12 Parliaments/Chambers (including the Polish Sejm) representing a total of 19 votes sent a

reasoned opinion within the time limit, i.e. by 22 May 2012 (the threshold being 18 votes).

Following an analysis, the Commission stated that the subsidiarity principle had not been

breached. However, facing the prospect of failure to win sufficient political support in the EP

and the Council, it decided to withdraw the proposal on 26 September 2012.

National Parliaments received two letters from Vice President of the Commission Maroš

Šefčovič: the first one, dated 12 September 2012, announced the withdrawal of the proposal

due to a lack of support, and the second one, date 14 March 2013, explained briefly why the

Commission believed no subsidiarity breach was involved.

The second yellow card

referred to

COM(2013) 534,

Proposal for a Council regulation on the

establishment of the European Public Prosecutor's Office.

14 Parliaments/Chambers representing a total of 18 votes sent a reasoned opinion within the

time limit, i.e. by 28 October 2013 (the threshold being 14 votes). On 6 November 2013, the

Commission confirmed the triggering of the early warning mechanism, and on 12 November

2013 it sent a letter to Speakers of Parliaments confirming, in compliance with the procedure,

that the threshold had been reached. On 27 November, the Commission issued

Communication COM(2013) 851 to uphold its proposal on the establishment of the European

Public Prosecutor's Office as being in compliance with the principle of subsidiarity, and

justified its position on 14 pages.

An analysis of all reasoned opinions sent to the European Commission conducted by the

Experts from Sejm’s Bureau of Research shows that the

main objections of the national

Parliaments/Chambers regarding the draft legislative acts concerned:



the belief that the objectives of the proposed regulation cannot be sufficiently

achieved by the Member States;

breach of the principle of proportionality being inseparably connected with the

principle of subsidiarity;

reference to an incorrect legal basis;

a lack of justification of a draft legislative act or its insufficient justification with regard

to its compliance with the principle of subsidiarity;

the Commission's breach of its mandate to adopt delegated or implementing acts;

Data for the Commission as at the end of December 2014, based on unofficial information; data for the European

Parliament as at 3 March 2015

EUU, Alm.del - 2014-15 (1. samling) - Bilag 481: Invitation fra det polske parlament til arbejdsgruppe om nationale parlamenters rolle 13/5-15



other.

An analysis of the European Commission's replies to reasoned opinions

of national

Parliaments "leads

to the conclusion that in none of the cases scrutinised has the Commission

shared the reservations of national Parliaments. Having regard to the large number of the

documents reviewed and the fact that the objections concerned mostly the objective of the

proposed regulation, which is essential to the assessment of a subsidiarity breach, it is

concluded that the Commission generally does not take into account national Parliaments'

opinions"

The scrutiny of replies from the European Commission to reasoned opinions has led to the

following conclusions:



the Commission usually comments objections contained in reasoned opinions in

formal terms;

its replies usually (with some exceptions) have a high degree of generality;

they lack a sufficient in-depth assessment of the issues analysed.

In addition, a review of the European Commission's replies to reasoned opinions shows that

the time it takes the Commission to prepare them varies

from two months to about one

year, the average time for drawing up a reply being four to five months.

This shows that there is a strong need to improve cooperation with the European Commission

regarding its replies to reasoned opinions of national Parliaments. The new opening in

relations with national Parliaments, announced by the First Vice President of the Commission

Frans Timmermans, raises hopes that the relations will develop in such a manner as to enable

national Parliaments to exercise real influence on EU legislation in line with the prerogatives

conferred on them in the Treaties.

In the course of its work, the Friends of Presidency Group has also devoted much time to the

issue of the European Commission's replies to national Parliaments' reasoned opinions. In its

final report for the Presidency in December 2014, it noted the need "for

the Commission to

deal with reasoned opinions of national Parliaments initiating the so-called

"yellow card"

procedure. Several delegations called for a more detailed analysis by the Commission in the

event the yellow card procedure is applied, in which analysis the Commission would undertake

to carry out an official internal debate, if possible a formal debate by the College, should the

yellow card procedure be triggered".

The intention of the new partnership between the European Commission and

national Parliaments would be expressed by the Commission's commitment to:



Reduce the time for the preparation of replies to reasoned opinions to a

maximum of 2 months;



Discuss in detail in its replies all issues raised by national Parliaments in

their reasoned opinions;

Sejm’s Bureau of Research in :"Parlamenty

narodowe wobec zasady pomocniczości w świetle prawa i praktyki

Unii Europejskiej”,

Wydawnictwo Sejmowe, Warszawa, 2015

EUU, Alm.del - 2014-15 (1. samling) - Bilag 481: Invitation fra det polske parlament til arbejdsgruppe om nationale parlamenters rolle 13/5-15



Prepare, in addition to individual replies to the Parliaments/Chambers

that have sent reasoned opinions, one reply comprising replies to all

reservations raised by national Parliaments/Chambers in their reasoned

opinions and circulate them to all Parliaments/Chambers of the Member

States.

Such a collective Commission's reply to all reasoned opinions:



would provide national Parliaments with a complete picture of the quality of the

Commission's replies;

would encourage the Commission to exercise greater diligence in preparing its replies;

could make it possible to avoid misunderstandings or the Commission being re-

approached by a Parliament/Chamber if a more accurate and exhaustive reply to its

reservations were found in such a collective reply .

IV. The possibility of extending the deadline for reasoned opinions

from 8 to 12 weeks

For quite some time, national Parliaments have been discussing the extension of the 8-week

deadline within which they can scrutinise draft legislative acts for compliance with the

principle of subsidiarity.

The Nineteenth Bi-annual Report: Developments in European Union Procedures and Practices

Relevant to Parliamentary Scrutiny prepared by the COSAC and presented to XLIX COSAC on

23-25 June 2013 in Dublin showed that 1/3 of national Parliaments/Chambers find the 8-week

period too short to scrutinise legislative proposals for compliance with the principle of

subsidiarity in a reliable manner. In their replies, some of them suggested that a 12-week

period for internal parliamentary scrutiny of subsidiarity would be better. At the same time, it

was pointed out “that

a longer period would not mean a significant slowing down of the

European legislative procedure (given its usual duration), but it would provide enough time for

the national Parliaments to thoroughly scrutinise subsidiarity. This could also lead to an

improvement in the quality of the reasoned opinions”.

Also in the course of work of the Friends of Presidency Group, the issue of subsidiarity

monitoring deadlines was addressed, and a report submitted to the Presidency in December

2014 emphasised that "a

consensus has been achieved on that it is necessary to consider the

use of a more flexible interpretation of the respective provisions of the Protocol”.

In light of the Treaties currently in force, it seems impossible to specifically extend the period

given to national Parliaments to examine legislative proposals for compliance with the

subsidiarity principle from 8 to 12 weeks. However, the European Commission could take a

more flexible approach to the existing provisions of the Treaty.

Several arrangements could be adopted, which would enable each 8-week

period to be extended by a few days, and in extreme cases even by 10-20 days:

EUU, Alm.del - 2014-15 (1. samling) - Bilag 481: Invitation fra det polske parlament til arbejdsgruppe om nationale parlamenters rolle 13/5-15



exclude from the 8-week period any holidays in the Member States;

exclude from the 8-week period the Christmas/New Year break, as is the

case with the summer holidays in August;

exclude from the 8-week period any non-working periods in the EU

Institutions.

Summary

The implementation of the above changes requires determination and commitment on the

part of national Parliaments as well as good will on the part of the European Commission. We

hope that, together with the European Commission's new opening, we will be able to develop

a common model of enhanced cooperation that will enable all the existing instruments and

mechanisms to be used more effectively.