European Scrutiny Committee Contents


6 The European Parliament's right of inquiry

(34388)

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

Legal base
Document originated14 October 2012
Deposited in Parliament8 November 2012
DepartmentForeign and Commonwealth Office
Basis of considerationEM of 3 December 2012
Previous Committee ReportNone
Discussion in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

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


 
previous page contents next page


© Parliamentary copyright 2012
Prepared 2 January 2013