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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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 30 January 2013
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| Previous Committee Report | HC 86-xxv (2012-13), chapter 6 (19 December 2012)
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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 (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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