6 The European Parliament's right of
inquiry
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| Report of the European Parliament on a Proposal for a Regulation of the European Parliament on the detailed provisions governing the exercise of the European Parliament's right of inquiry and repealing Decision 95/167/EC, Euratom, ECSC of the European Parliament, the Council and the Commission
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| Legal base | —
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| Document originated | 14 October 2012
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| Deposited in Parliament | 8 November 2012
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 3 December 2012
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| Previous Committee Report | None
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| Discussion in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
6.1 On 23 May 2012, the European Parliament voted in plenary to
endorse the substance of a report from its Constitutional Affairs
Committee (AFCO) concerning its rights of inquiry. The report,
drafted by David Martin MEP, proposes a draft Regulation which
would replace an existing Decision[22]
from 1995, and would give the European Parliament new powers of
inquiry.
6.2 The European Parliament's vote in May was on
the substance of the Martin report proposals but a separate legislative
resolution will have to be passed before it is formally adopted.
The purpose of agreeing to the substance of the report without
formal adoption of a legislative proposal was to give the European
Parliament room to open negotiations with the Council and the
Commission with a view to finding informal agreement (the consent
of both the Council and the Commission is required under Article
226 TFEU).
6.3 On 12 September the Deputy Secretary-General
of the European Parliament wrote on behalf of its President to
the national parliaments "in accordance with Article 2 of
Protocol No 1 of the Role of National Parliaments", enclosing
the Martin report. The letter informed national parliaments that
inter-institutional negotiations had commenced and that the vote
on the plenary resolution had been postponed.
6.4 We understand that the Spanish Congress and Senate
responded to the letter by asking the European Parliament to set
a starting date for the eight-week period for the Reasoned Opinion
procedure in Article 6 of Protocol No. 2 on the Application of
the Principles of Subsidiarity and Proportionality. Consequently,
the President of the European Parliament asked the Committee on
Legal Affairs to advise him whether Protocol No. 2 was applicable.
We further understand that the Committee on Legal Affairs concluded
that it was not applicable, because:
- the principle of subsidiarity
does not apply to areas of exclusive EU competence; and
- legislation of an internal organisational character,
such as this, falls within the EU's exclusive competence.
Legal base
6.5 Article 226 TFEU provides for the European Parliament
to establish temporary Committees of Inquiry "to investigate,
without prejudice to the powers conferred by the Treaties on other
institutions or bodies, alleged contraventions or maladministration
in the implementation of Union law, except where the alleged facts
are being examined before a court and while the case is still
subject to legal proceedings". Any more detailed provisions
governing the exercise of the right of inquiry should be determined
by the European Parliament through a Regulation of its own initiative,
in accordance with "a special legislative procedure",
having obtained the consent of the Council and the Commission.
The proposed Regulation
6.6 The explanatory statement accompanying the report
— introduced by a quote from Bob Dylan: "Truth is an
arrow and the gate is narrow…that it passes through"
— explains that the inquiry into the Equitable Life Assurance
Society crisis soon discovered "the limited powers granted
to committees of inquiry, which ultimately appeared not to be
in line with the political stature, needs and competences of the
European Parliament. In this regard the EQUI committee noted in
its report that:
"Except with regard to the European Commission,
the committee has very little power: it cannot summon witnesses,
there are no consequences, cost or penalty if a possible witness
refuses to cooperate with the inquiry, and there are no sanctions
for giving false testimony or for refusing to attend or to give
evidence before the committee. The committee has no investigative
powers similar to the Courts in connection with national administrations
or when an administrative or private body refuses to deliver documentation
to the committee. Neither does it have the possibility to ask
a national Court for assistance in the course of its investigation."
6.7 Under Articles 1 and 2 of the proposed Regulation
the European Parliament may set up a temporary committee of inquiry,
at the request of one-quarter of its members, "to investigate
alleged contraventions or maladministration in the implementation
of Union law". A committee of inquiry will have 12 months
from the date of its first meeting to conclude its inquiry. Section
2 ("General procedural rules") sets out the procedures
which the committees will follow.
6.8 Section 3 ("Investigation") of the
draft Regulation sets out the new or revised investigatory powers
of the committees. In sum, this section would:
- further empower committees
of inquiry by enabling them to summon, rather than invite, via
national authorities, any legal person residing within the EU
to act as a witness;
- strengthen provisions governing the invitation
of officials of the EU institutions and Member State officials
to give testimony;
- provide the committee of inquiry with the power
to summon officials of the EU institutions, including Members
of the Commission;
- strengthen the committee of inquiry's powers
to request experts' reports and to have access to relevant documents;
- introduce a power which enables a committee of
inquiry to conduct on-the-spot investigations in Member States;
- oblige Member States to ensure their national
authorities give support to the European Parliament to facilitate
its investigations;
- introduce the possibility of imposing sanctions
"in well-defined cases" where a committee of inquiry
has determined that there has been an infringement of the provisions
as outlined in the Regulation. The onus is placed on Member States
in determining what those sanctions should be; and
- enable the European Parliament to ask national
parliaments to cooperate in the investigation, and to enter into
interparliamentary agreements with national parliaments to achieve
this.[23]
The Government's view
6.9 In an Explanatory Memorandum dated 3 December,
the Minister for Europe (Mr David Lidington) explains that the
European Parliament can already establish committees of inquiry
to investigate alleged breaches of, or poor application of, EU
Law. The AFCO Committee would like to see powers in this regard
strengthened to enable such committees of inquiry to, for example,
summon witnesses and request expert advice. Such increased powers,
it is argued, are in line with the enhanced role and recognition
given to the European Parliament under the Lisbon Treaty, and
the powers enjoyed by national parliaments.
6.10 The Minister confirms that the proposed Regulation
has not been formally adopted by the European Parliament itself.
As such it does not fall within the usual remit of documents which
are submitted to the Scrutiny Committees for consideration. However,
he is conscious that this proposal is of interest to the Committee
which is why it is being submitting for scrutiny at this stage.
6.11 During initial discussions in the Council, the
Minister says that the UK, along with a number of other Member
States, has expressed legal concerns about the scope and nature
of the proposal — and in particular the potential for conflict
between the European Parliament's primarily political nature,
and some quasi-judicial elements of the draft proposal: including
the suggestion that Member State officials could be summoned to
appear before a committee of inquiry.
6.12 The proposal is still at an early stage and
the European Parliament has already made some amendments to the
proposed Regulation in light of initial comments from the Commission
and the Council. These amendments have attempted to address some
of the quasi-judicial elements included within the original proposal.
The Government expects that the proposal will be further amended
before a final text is adopted: not least because the Council
and Commission must give their consent to the proposal. Amending
these proposals to ensure that any final proposal is in line with
the scope of the relevant legal base is likely to result in a
number of changes. It is therefore unclear at present what any
final document will look like, but the Minister expects it to
differ considerably from this draft. The date for final agreement
is also difficult to predict, however.
6.13 In terms of subsidiarity, the Minister says
that, because the European Parliament is an institution of the
EU, it is appropriate that its right of inquiry is considered
at EU level.
Our analysis
IS THE REPORT A DRAFT LEGISLATIVE ACT FOR THE PURPOSES
OF PROTOCOL 1 AND 2?
6.14 We consider that the European Parliament's own-initiative
proposal, based on Article 226 TFEU, will be a draft legislative
act once it is adopted by the European Parliament as a formal
proposal, simply because it is adopted by the EU by means of a
"special legislative procedure" (see the third paragraph
of Article 226). By virtue of Article 289(3) TFEU, all legal acts
(a term which includes Regulations) adopted by the ordinary or
a special legislative procedure "constitute legislative acts".
ONCE ADOPTED, DOES THE EUROPEAN PARLIAMENT HAVE TO
RESPECT THE OBLIGATIONS UPON THE INITIATING INSTITUTION LAID DOWN
ONLY IN PROTOCOL 1 OR IN BOTH PROTOCOLS 1 AND 2?
6.15 As a draft legislative act, we consider that
the following procedures in both Protocols 1 and 2 should be followed:
- Article 2 of Protocol 1 requires
the European Parliament's own-initiative draft legislative acts
to "be forwarded to national Parliaments directly by the
European Parliament".
- Article 4 of Protocol 1 requires there to be
an eight-week delay from publication in all official languages
for national parliamentary scrutiny before a draft legislative
act can be placed on a provisional agenda for adoption by the
Council, or for the Council's adoption of a position under a legislative
procedure (such as the special legislative procedure in this case).
- Article 4 of Protocol 2 requires the European
Parliament's own-initiative draft legislative acts and amended
drafts to be forwarded to national Parliaments (note the additional
obligation from that of Protocol 1).
- Article 4 of Protocol 2 requires legislative
resolutions of the European Parliament and positions of the Council
to be forwarded by them respectively to national parliaments.
- Article 5 of Protocol 2 requires that a draft
legislative act should contain a detailed statement making it
possible to appraise compliance with the principles of subsidiarity
and proportionality, whichever the initiating institution.
6.16 It is to be noted that Protocol 2 places obligations
on the initiating institution which go beyond justification of
compliance with subsidiarity. These include the requirement on
the European Parliament to forward legislative resolutions and
amended draft legislative acts to national parliaments; and to
prepare a detailed statement making it possible to appraise compliance
with the principle of proportionality.
6.17 There is nothing in the language of Protocol
2 that would permit an initiating institution to circumvent the
obligations placed on it in the bullet points above in cases of
exclusive EU competence — Protocol 2 makes no distinction
whatsoever for draft legislative acts in the field of exclusive
EU competence.
6.18 In cases where exclusive EU competence is asserted,
the initiating institution should justify this in the explanatory
statement accompanying the draft legislative act. In the usual
cases where the competence is listed as exclusive in the TFEU,
reference to Article 3(1) will suffice. In the unusual case where
it is not, such as this, the explanatory statement should set
out in sufficient detail the arguments why the EU's exclusive
competence applies.
6.19 We therefore conclude that the European Parliament
has misconceived the application of Protocol 2 in concluding that
it does not apply where exclusive competence is asserted. We have
in mind, in particular, the obligation on the European Parliament
to justify in a detailed statement pursuant to Article 5 of Protocol
2 why the investigative powers it proposes for temporary committees
of inquiry are proportionate to the legislative objective. It
would be anomalous to conclude that the proportionality assessment
did not apply because of the EU's exclusive competence.
IS THE EUROPEAN PARLIAMENT'S RIGHT OF INQUIRY UNDER
ARTICLE 226 TFEU AN EXCLUSIVE COMPETENCE OF THE EU?
6.20 We understand that the European Parliament maintains
that its right of inquiry powers are acts of an internal organisational
character and that, as such, they fall within the exclusive competence
of the EU. They are therefore similar to the Staff Regulations
and the Statutes for MEPs and the judges of the ECJ, for example.
6.21 We note, however, that the list of exclusive
competences in Article 3(1) TFEU is exhaustive ("the Union
shall have exclusive competence in the following areas"),
and does not include acts of an internal organisational character.
This is to be contrasted with areas of shared competence, where
Article 4(1) clarifies that this category of competence is the
residual competence of the EU, applying "where the Treaties
confer on [the EU] a competence which does not relate to the areas
conferred to in Articles 3 [exclusive competence] and 6 [supporting
competence]". Consistently with this, the list of shared
competences in Article 4(2) is not exhaustive ("shared competence
between the Union and the Member States applies in the following
principal areas").[24]
There is, therefore, a strong contextual argument that this proposal
falls within the residual category of mixed competence.
6.22 This conclusion is reinforced by the substantive
argument that the proposal places onerous obligations on all Member
State authorities and on any legal or natural person (an individual
or company) within those Member States to cooperate with a European
Parliament committee of inquiry. It also requests national parliaments
to cooperate with a committee of inquiry. Given the national
impact of the proposal, it would be surprising indeed if the European
Parliament were not obliged to justify its necessity as part of
a subsidiarity assessment in accordance with Article 5 of Protocol
2.
HAS THE EUROPEAN PARLIAMENT ADOPTED A DRAFT LEGISLATIVE
ACT?
6.23 What is harder to discern is when the European
Parliament's internal negotiations have ended and the formal draft
legislative act is adopted and forwarded to the Commission, Council
and national parliaments. This is because, where the consent of
the Commission and the Council is required for its own-initiative
proposals, the European Parliament has the power to postpone adopting
the legislative resolution, to which draft legislative act is
annexed, so that the two other institutions can state their position.
Rule 41(3) of the Rules of Procedure of the European Parliament
provides that "[w]here the adoption of an act by Parliament
requires the approval or the consent of the Council and the opinion
or the consent of the Commission, Parliament may, following the
vote on the proposed act, and on a proposal by the rapporteur,
decide to postpone the vote on the motion for a resolution until
the Council or the Commission have stated their position."
6.24 This precedes, and is not to be confused with,
the formal negotiations with the Commission and Council which
commence once the European Parliament has adopted and forwarded
the draft legislative act. Although the order is odd, the
recital paragraphs of the draft legislative resolution make this
sequence of events clear — it is only on its adoption that
the paragraphs of the resolution become operative, and the President
"forwards the resolution and the proposal [i.e. the draft
legislative act]" to the institutions.
6.25 On 23 May 2012 the Plenary amended and adopted
the report of the Constitutional Affairs Committee on the proposal,
but did not adopt a legislative resolution. This is confirmed
by the footnote, which says that "Parliament decided to postpone
the vote on the motion for a resolution, pursuant to the third
paragraph of Rule 41". The Minutes confirm that the rapporteur
asked for the vote to be postponed.
6.26 In the Committee's view, the fact that the legislative
resolution was not adopted by the plenary on 23 May means that
the draft legislative act in its annex act was not adopted. This
is still therefore a draft within the European Parliament pending
final internal agreement, and so has yet to be forwarded to the
Commission and the Council, and to the national parliaments, in
accordance with Protocols 1 and 2, despite the letter of 12 September
to the contrary from the Deputy Secretary-General of the European
Parliament. The legislative procedure is still at the stage of
the rule 41(3) informal negotiations, therefore.
CONSEQUENCES OF INFORMAL NEGOTIATIONS WITH THE COMMISSION
AND COUNCIL
6.27 Until the European Parliament formally adopts
a legislative resolution and forwards a draft legislative act,
national parliaments are effectively excluded from the negotiations
— the Treaty safeguards in Protocol 1 are inactive until
Protocol 1 is triggered. (Under our own procedures, the Government
was under no obligation to deposit this document until it becomes
a draft legislative act, as the Minister explains.) The consequence
of this exclusion is particularly significant given that the proposed
legislation places specific obligations on national parliaments.
If the European Parliament,
Council and Commission reach consensus before the draft legislative
act is formally adopted by the European Parliament, which is the
intention of the European Parliament, the scope for national parliaments
to influence the negotiations is, in effect, removed.
6.28 We think this lack of transparency is unacceptable.
The alternative, which we think should be followed, is for the
European Parliament to adopt a legislative resolution, forward
the draft legislative act to the Council, Commission and national
parliaments, and enter into formal first reading negotiations,
which may lead to the European Parliament revising its initial
proposal (we note again that Article 4 of Protocol 2 specifically
foresees the possibility of the European Parliament forwarding
"amended drafts"). This will trigger both Protocols
1 and 2, and allow national parliaments properly to scrutinise
and influence the negotiations.
CAN THE EU TREATIES BIND NATIONAL PARLIAMENTS?
6.29 In our view Article 226 TFEU does not confer
on the European Parliament the right to request the assistance
of national parliaments, such as found in Article 12(3) of the
draft proposal:
"Where alleged contraventions or maladministration
in the implementation of Union law involve possible responsibility
on the part of a body or authority of a Member State, the committee
of inquiry may ask the parliament of the Member State concerned
to cooperate in the investigation.
"To that end, the European Parliament may conclude
interparliamentary agreements with the parliaments of the Member
States."
6.30 This is because the EU Treaties, though legally
binding on Member States, are not so on their national parliaments.
This was argued by the House at the time of the Lisbon Treaty
negotiations in relation to the Treaty wording for the subsidiarity-monitoring
role of national parliaments. So without entertaining whether
Article 226 TFEU gives the European Parliament implied investigatory
powers to call witnesses and summons documents, we would question
whether the EU Treaties can request the assistance of the House
of Commons; nor, accordingly, can secondary EU law such as this
proposed Regulation.
6.31 In this regard, we note that the European Parliament's
right of inquiry in Article 226 TFEU is targeted at "alleged
contraventions and maladministration in the implementation of
EU law". This focuses very much on national law and implementation
procedures, and, by inference, the role in this of national parliaments.
So there is a risk that Article 11(3) of the proposal could lead
to the undermining of Westminster Parliamentary privilege.
Conclusion
6.32 We thank the Minister for depositing the
document.
6.33 We understand that the proposal as drafted
is likely to change considerably because it is acceptable to neither
the Council nor the Commission; and that the timeframe for the
negotiations is, currently, without limit. But we think the proposal
raises important questions of principle which should be addressed
now.
6.34 We will take up many of the points in the
analysis above directly in correspondence with the President of
the European Parliament. Nonetheless, we would be grateful if
the Minister could respond to the following questions.
- We ask the Minister to say
at what point he thinks the European Parliament's proposal becomes
a draft legislative act; whether the contents of the proposal
are of an internal organisational character and therefore within
the EU's exclusive competence; if so, how this is consistent with
Articles 3 and 4 TFEU, which imply that the list of exclusive
external competence is exhaustive and that the residual competence
for proposals such as this is shared competence; and whether Protocol
2 is disapplied in the case of draft legislative acts in fields
of exclusive competence.
- In his Explanatory Memorandum, the Minister
says that "We expect the proposal will be further amended
before a final text is adopted: not least because the Council
and Commission must give their consent".[25]
We ask the Minister whether he shares our concerns about the lack
of transparency in this approach; whether he agrees it effectively
excludes national parliaments from influencing the negotiations;
and, if he does share our concerns, what he proposes to do about
it.
- Other than Article 11(3), which we cite in
full above, we ask the Minister how many of the provisions in
the proposed Regulation place obligations on national parliaments
or their members. In this respect we ask him whether the expressions
"Member State authorities" and "any legal or natural
person" are presumed to include national parliaments or their
members.
- We ask the Minister to say whether the role
of national parliaments foreseen in the proposal has been considered
in the Council, or, to his knowledge, in the European Parliament,
to date.
- Finally, we ask the Minister whether he thinks
the EU secondary law allows the institutions to request the assistance
of national parliaments, as per Article 11(3).
6.35 In the meantime we retain the document under
scrutiny.
22 Decision 95/167/EC, Euratom, ECSC of the European
Parliament, the Council and the Commission. Thus far the European
Parliament has established three Committees of inquiry under its
existing powers: into the Community Transit Regime; into BSE;
and into the Equitable Life Assurance Society. Back
23
Article 12(3). Back
24
See, in support of this analysis, the Opinion of Advocate-General
Bot in case C-274/11 and C-295/11, paras 44-51. Back
25
Para 12 of the Minister's Explanatory Memorandum. Back
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