Twelfth Report of Session 2013-14 - 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
DepartmentForeign and Commonwealth Office
Basis of considerationMinister's letter of 30 January 2013
Previous Committee ReportHC 86-xxv (2012-13), chapter 6 (19 December 2012)
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 (EP) 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 EP new powers of inquiry.

6.2  The EP'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 EP 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 2012 the Deputy Secretary-General of the EP 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  The Spanish Congress and Senate responded to the letter by asking the EP 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. 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.

Previous scrutiny

6.5  In our last Report we concluded as follows:

"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.

"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".[23] 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)."

The Minister's letter of 30 January 2013

6.6  The Minister for Europe (Mr David Lidington) wrote on 30 January in answer to the questions we posed above. In response to the first question he says that Article 3 of Protocol 2 provides that the term "draft legislative acts" includes amongst its meanings "initiatives from the European Parliament". He therefore agrees with the Committee's conclusion that the draft Regulation in the report of the European Parliament's Constitutional and Administrative Affairs Committee will become a draft legislative act at the time at which it is adopted by the EP as a formal proposal.

6.7  He considers that Article 226 TFEU provides for a function for the European Parliament rather than a substantive area of competence such as is provided for in Articles 2 to 6. The EP carries out this function only to the extent that the EU has competence and thus respects the division of competence between EU and Member States. Article 226 TFEU cannot fall within an area of shared competence within the meaning of Article 2(2) TFEU, as the implication would be that the Member States could legislate for EP's exercise of its powers under the Treaties. However, Protocol 2 of the Treaties contains nothing that restricts its application for legislative acts falling within the EU's exclusive competence, albeit that the principle of subsidiarity is straightforwardly satisfied when such acts do so, as per Article 5(3) TEU.

6.8  In response to the second question, the Minister understands the Committee's concerns with regards to the process being utilised for this proposal. It is important, he states, that national parliaments have an opportunity to feed into negotiations, and it is for this reason that he deposited the draft report with the Committee towards the end of last year. He also notes that the EP itself wrote to national parliaments presumably to the same end.

6.9  He says the Government expects the internal discussions within the EP to continue for some time and for the proposals to change considerably before being adopted as a draft legislative act. The scrutiny reserve will apply as normal once the proposal is formally adopted by the EP in plenary, and whilst broad input is given prior to that stage to influence the EP in formulating the proposal, this does not undermine the ability to negotiate afterwards and for national parliaments to have the opportunity to scrutinise the proposal as normal once the proposal is made. Given the unusual process for the adoption of this Regulation, which means that the Council and Commission must either accept or reject the EP's proposal, if, once a draft legislative act is adopted, significant changes are needed, the Minister thinks that the EP may decide to adopt a new further proposal.

6.10  The Minister notes that the Committee will be writing to the EP itself, which he encourages as a means by which to influence the proposal.

6.11  In response to the third question, the Minister does not consider that "Member State authorities" or "national authorities of the Member States" would include national parliaments, nor is the UK Parliament a "legal person". However, Members of Parliament are natural persons and, as such, Article 15 and the obligations falling on any person resident in the European Union could potentially apply to individual members of national parliaments.

6.12  Whilst Article 16 refers to members of the governments of Member States, their testimony is requested by invitation rather than summons, as is the case for officials and other servants of the Union and Member States under Article 15. The Minister's view is therefore that Article 16 does not impose any wider obligations on individuals or the UK government.

6.13  In response to the fourth question the Minister says that he is not aware of any in-depth discussions within the EP on the role of national parliaments foreseen in the proposal, although there would have been internal discussions within the European Parliament as part of the process for compiling this report. He also understands that a study of the various provisions on committees of inquiry in national parliaments formed some of the background to the draft proposal.

6.14  Although the proposal, not being a draft legislative act, has not been discussed extensively by the Council to date, he is aware that a number of Member States, alongside the UK, expressed reservations during early working group discussions about the appropriateness of the envisaged role for national parliaments, and the parallels being drawn with the rights of inquiry of national parliaments.

6.15  This is an issue which the Minister expects the EP to revisit as part of its wider deliberations prior to adoption of a formal legislative proposal.

6.16  In response to the last question, the Minister says that cooperation between the EP and national parliaments is expressly provided for in Article 12(f) TEU, as well as in Articles 9 and 10 of Protocol 1. Article 9 of Protocol 1 provides for the organisation of such cooperation to be determined by the EP and national parliaments together. In that regard he notes that Article 11(3) of the draft proposal for a Regulation does not impose an obligation on national parliaments to comply with invitations to cooperate, and provides that the EP may conclude inter-parliamentary agreements with the parliaments of the Member States, so the modalities of any cooperation would need to be agreed by the national parliaments concerned.

6.17  The Minister concludes by saying he will endeavour to ensure that the Committee is sighted on the draft legislative proposal which the EP adopts as early as possible. He will also, in shaping the Government's response to any draft legislative proposal, want to take careful account of the views of Members of both Houses.

The letter of the President of the European Parliament of 6 June 2013

6.18  We wrote to the President of the EP, Martin Schulz, on 19 December asking a series of questions on the status of the EP's report on the draft proposal.

6.19  The President replied on 6 June. In his letter he explains that he referred the questions we raised to the EP's Committee of Legal Affairs, which published an opinion which he attaches to his letter, and which he fully endorses. The opinion is dated 26 April 2013. It provides "an in-depth analysis on why the detailed provisions governing the exercise of the European Parliament's right of inquiry cannot be considered a shared competence and therefore cannot be covered by the subsidiarity principle." He further explains that the EP also received requests for clarification from Spanish Cortes, the Polish Senate, and the Czech Parliament.

THE OPINION OF THE COMMITTEE OF LEGAL AFFAIRS

6.20  We set out the relevant paragraphs of the opinion verbatim:

"It is considered that the matters raised can be dealt with adequately by reference to the recommendation of the Committee of Legal Affairs sent to the President of Parliament on 28 November 2012 concerning the interpretation of the scope of the principle of subsidiarity in relation to the European Parliament's right of inquiry[24] with some further explanation.

"The recommendation reads as follows:

"Acts adopted under the ordinary or a special legislative procedure (Article 289(3) TFEU) are 'legislative acts' and their 'drafts' must be transmitted to National Parliaments and be subjected to a subsidiarity check when they implement non-exclusive competences of the Union.

"The Lisbon Treaty (Article 5(3) TEU and Article 3 TFEU) provides that the principle of subsidiarity does not extend to areas falling within the exclusive competence of the European Union. An act such as a proposal for a regulation drawn up pursuant to Article 226 TFEU to govern the exercise of the European Parliament's right of inquiry is of an internal organisational character and hence falls within the exclusive competence of the European Union. Consequently, no starting date can be set for a subsidiarity check by National Parliaments pursuant to Protocol No 2".

"Article 5(3) TEU is unambiguous: "Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level."

"Whereas Advocate General Bot in his opinion in Joined Cases C-274/11 and 295/11 considered that the list of exclusive competences in Article 3 TFEU was exhaustive, he was not asked to address — and given the context in which he was writing, namely the question whether enhanced cooperation was possible in the field of intellectual property, quite properly did not have to address — the question of legislative acts of an internal organisational character adopted under a special or the ordinary legislative procedure, which include the Staff Regulations of officials,[25] the Statute for Members of the European Parliament,[26] the regulations and general conditions governing the performance of the Ombudsman's duties[27] and the Statute of the Court of Justice.[28]

"If the competence to adopt those legislative acts was not exclusive, it should have to be a shared competence. Under 2(2) TFEU "When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in this area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence." According to this provision, when a competence is shared, Member States could potentially legislate separately on the matter. It would be inconceivable and ultimately absurd to imagine 27 different sets of national legislation on a subject such as the provisions governing the exercise of the European Parliament's right of inquiry.

"The proposed regulation is therefore not subject to a subsidiarity check, although the legislating institutions are still under duty to check that it is not ultra vires (quod non) or disproportionate. It must be borne in mind that once there is a draft legislative act, it has to obtain the consent of both the Council and the Commission, which constitutes a safeguard against any ultra vires action.

"Let us now turn to the specific questions raised by the European Scrutiny Committee of the House of Commons.

"(1) Once adopted by the special legislative procedure provided for in Article 226 TFEU, the proposal for a Regulation of the European Parliament on the detailed provisions governing the exercise of the European Parliament's right of inquiry, will become a legislative act.

"(2) Since the European Parliament decided to postpone the vote on the motion for a resolution, pursuant to the third paragraph of Rule 41[29] of the Rules of Procedure, there is not yet a draft legislative act. There will be a draft legislative act only when the House has voted to approve the motion for a legislative resolution.

"As far as the provisions of Protocol No 2 are concerned, those relating to the subsidiarity check do not apply in view of the nature of the legislative act proposed as explained above. However, it is clear that Article 4 applies. Indeed, on 12 September 2012, in the spirit of Article 4, the Deputy Secretary-General of the European Parliament, acting on behalf of the President of the European Parliament, forwarded to the national parliaments the proposal for a regulation of the European Parliament on the detailed provisions governing the exercise of the European Parliament's right of inquiry. In addition, it is clear that Article 5 must also apply in so far as it requires draft acts to be justified with regard to the principle of proportionality and to contain some assessment of their financial impact.

"(3) The European Parliament's right of inquiry under Article 226 TFEU is an exclusive competence as explained above.

"Whether it places onerous obligations on Member State authorities and natural and legal persons is doubtful in the light of the wording of the proposal and has to be judged as a question of vires and in the light of the principles of proportionality and sincere cooperation. In any event, this cannot change its nature as a measure of internal organisation.

"(4) As has already been pointed out, since the European Parliament decided to postpone the vote on the motion for a resolution, pursuant to the third paragraph of Rule 41[30] of the Rules of Procedure, there is not yet a draft legislative act. There will be a draft legislative act only when the House has voted to approve the motion for a legislative resolution. The letter from the Deputy Secretary General of the European Parliament of 12 September 2012 should be regarded as implementing the mutual sincere cooperation referred to in Article 13 TEU and the information of national Parliaments referred to in Article 12 TEU.

"(5) The repercussions on Member States' authorities and on natural and legal persons of the proposal for a regulation of the European Parliament on the detailed provisions governing the exercise of the European Parliament's right of inquiry are regulated — inter alia — by the principle of sincere cooperation between the Union and the Member States.[31] Moreover, the power of inquiry of the European Parliament is limited by Article 226 TFEU to investigating "alleged contraventions or maladministration in the implementation of Union law". Action by the European Parliament in looking into these matters ought to be welcomed by national Parliaments, as witness the concerns expressed by the House of Lords EU Committee in its Report of 17 April 2013 entitled "The Fight against Fraud on the EU's Finances".

"The national Parliaments of the Member States are asked actively to contribute to the good functioning of the European Union pursuant to Article 12 TEU, and to cooperate effectively and regularly with the European Parliament (see Protocol No 1, Article 9). These provisions are merely precatory and do not impose enforceable obligations on national Parliaments.

"By the same token, this proposal is not intended to have legal binding effect on national Parliaments. It would be for them decide whether to cooperate with the European Parliament in cases of alleged contraventions or maladministration in the implementation of Union law. The provisions in question in Article 12(3) of the proposal merely state that "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." Manifestly, the national parliament concerned may refuse to cooperate in the investigation and it takes two to conclude an agreement.

"The conclusions reached above have not prevented the proposal for a Regulation on Parliament's procedures for exercising the right of inquiry from being transmitted to national Parliaments for their information or national Parliaments from forwarding their comments on this proposal. In fact, all contributions from national Parliaments are greatly appreciated."

Conclusion

6.21  We thank the Minister for his helpful letter, which we delayed reporting until receiving a reply from the EP.

6.22  The Minister's view coincides almost entirely with that of the EP, namely that:

  • the EP is yet to adopt a draft legislative act;
  • the proposal relates to a function, rather than a competence, a distinction we find persuasive in disapplying Articles 3-6 TFEU (the EP argues to the same end that the proposal is of an "internal organisational character");
  • therefore it is within the exclusive competence of the European Parliament, and so the subsidiarity early warning mechanism in Protocol 2 does not apply, although other provisions in that Protocol do;
  • we will have an opportunity to influence the negotiations once the special legislative procedure begins;
  • the proposal places no binding obligations on national parliaments, although the Minister reports that other Member States have been concerned about the implication of the proposals for national parliaments; and
  • the proposal is likely to change considerably in negotiations between the institutions before it is adopted by the EP as a draft legislative act.

6.23  The replies from the Minister and the EP are a full response to the questions we posed in our earlier Report, and we accept the legal arguments which underpin them.

6.24  We comment, nonetheless, that the fact that the consent of the Commission and Council is, in effect, required before the EP adopts a draft legislative act (because once it is adopted those institutions can only accept or reject it) risks a deal being done before the legislative procedure begins in which national parliaments play a formal role defined in the treaties.

6.25  We keep the report under scrutiny and ask the Minister to provide us with an update on the current negotiations for our meeting on 11 September.




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   Para 12 of the Minister's Explanatory Memorandum of 3 December 2012. Back

24   Ref. D(2012)61997. Back

25   Article 336 TFEU. Back

26   Article 223(2) TFEU. Back

27   Article 228(4) TFEU Back

28   Article 281(2) TFEU. Back

29   Rule 41: "Where 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". Back

30   Rule 41: "Where 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". Back

31   Article 4(3) TEU Back


 
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