Annex: Legal Opinion of the European Scrutiny
Committee
Whether Article 88 TFEU confers power on the EU
to legally bind national Parliaments through secondary legislation
Do the EU treaties confer a general power on the
EU over the national Parliaments as well as governments of EU
Member States?
1. The EU Treaties, whilst recognising the important
contribution that national Parliaments make to the good functioning
of the European Union, do not — and cannot — impose
binding obligations on national Parliaments or prescribe the nature
of their contribution. National Parliaments are not subjects of
the Treaties, nor are they creatures of it. This was argued by
the House of Commons with other national Parliaments, and clearly
acknowledged, at the time of the Constitutional/Reform/Lisbon
Treaty negotiations, and is reflected in the declaratory
wording of Article 12 TEU, the principal provision of the EU Treaties
concerning national Parliaments: "National Parliaments contribute
actively to the good functioning of the EU" — note
that shall is absent.
2. The reason for this is that the Westminster Parliament,
like many other national Parliaments, is sovereign within its
own State, which is to say that it has, ultimately, legislative
supremacy over all other State institutions. In domestic terms
therefore, the Government does not have the capacity (vires)
to confer power on a supranational organisation such as the EU
to enact legislation which binds the Westminster Parliament, unless
the Westminster Parliament has consented to it through an act
of Parliament, which it has not. As importantly, in EU terms to
do so would be a significant breach of Article 4(2) TEU, which
obliges the EU to respect the constitutional settlements of the
Member States.
3. The same principle applies as much to EU secondary
legislation as to EU Treaties; accordingly, EU secondary legislation
does not — and cannot — impose binding obligations
on national Parliaments.
Does Article 88(2) TFEU confer a specific power
on the EU over national Parliaments?
4. Recognition of the sovereignty of national Parliaments
is also reflected in the final paragraph of Article 88(2) TFEU,
which states that:
"The European Parliament and the Council,
by means of regulations adopted in accordance with the ordinary
legislative procedure, shall determine Europol's structure, operation,
field of action and tasks [...]. These regulations shall also
lay down the procedures for scrutiny of Europol's activities by
the European Parliament, together with national Parliaments."
5. The Article draws a clear distinction between
by the European Parliament and the separate
sub-clause together with national Parliaments,
for which there must be a reason. By inserting together with
it can be argued with some force that the Treaty drafters
aimed to exclude national Parliaments from being a subject of
the Regulation in the same way as the European Parliament; otherwise
the provision would have been drafted as follows: by the European
Parliament and by national Parliaments, or by the European
Parliament and national Parliaments.
6. This distinction is made more clearly in the
French and German language versions of the provision:
"Ces règlements fixent également
les modalités de contr¼le des activités d'Europol
par le Parlement européen, contr¼le auquel sont
associés les parlements nationaux.
"Durch diese Verordnungen werden ferner
die Einzelheiten für die Kontrolle der Tätigkeiten von
Europol durch das Europäische Parlament festgelegt; an dieser
Kontrolle werden die nationalen Parlamente beteiligt."
Is the Commission proposal consistent with Article
88 TFEU?
7. The Commission published its proposal on a new
legal framework for Europol in March 2013. As drafted, Article
53(1) of the Commission's proposal on arrangements for inter-parliamentary
scrutiny states:
"The Chairperson of the Management Board
and the Executive Director shall appear before the European Parliament,
jointly with national Parliaments, at their request to discuss
matters relating to Europol, taking into account the obligations
of discretion and confidentiality."
8. This strikes the right balance of the Regulation
placing a legal obligation on Europol to appear before the European
Parliament and national Parliaments, but not prescribing in EU
secondary legislation how national Parliaments should cooperate
with the European Parliament.
Do the draft LIBE Committee amendments respect
the sovereignty of national Parliaments?
9. No — as summarised in paragraphs 11.10 and
11.11 of the attached Report, some of them place legally binding
obligations on national Parliaments to act, or not to act, in
specified ways.
10. Moreover, they are not consistent with Article
9 of the Protocol on the Role of National Parliaments in the European
Union, which provides: "The European Parliament and national
Parliaments shall together determine the organisation and
promotion of effective and regular inter-parliamentary cooperation
within the Union."
Conclusion
11. For these reasons the House of Commons would
be very concerned if the draft amendments proposed by the rapporteur
and other Members of the LIBE Committee, which prescribe the role
of national Parliaments, were to be included in the final Regulation.
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